ADDITIONAL CONTENT FROM:

BOC 2016 REVIEWER

SPECIAL PROCEEDINGS: ESSENTIAL FOR BENCH AND BAR BY DE LEON
A2016 REVIEWER
KLO CLASS NOTES

THANKS GUYS!
PART ONE: INTRODUCTION
I. IN GENERAL
RULE 1, Section 3 (c). A special proceeding is a remedy by which a
party seeks to establish a status, a right, or a particular fact.
A. Jurisdiction
See annex A for a more comprehensive table on jurisdiction.
Summary of jurisdiction of RTCs & MTCs under BP 129
1. Intestate or testate (probate) proceedings, if
gross value of estate is over: a. P100k; or
b. P200k within Metro Manila
2. All actions involving marriage and marital
relations
3. Special proceedings falling within exclusive
RTCs
original jurisdiction of Juvenile & Domestic
Relations Court
4. Special proceedings falling within exclusive
original jurisdiction of Court of Agrarian Reform
Intestate or testate (probate) proceedings, if gross
MeTCs, value of estate does not exceed:
MTCs, and
a. P100k; or
MCTCs
b. P200k within Metro Manila
BP 129, Section 19. Jurisdiction in civil cases. – Regional Trial
Courts shall exercise exclusive original jurisdiction:
xxx
(4) In all matters of probate, both testate and intestate, where the
gross value of the estate exceeds One hundred thousand
pesos (P100,000.00) or, in probate matters in Metro Manila,
where such gross value exceeds Two hundred thousand pesos
(200,000.00);
(5) In all actions involving the contract of marriage and marital
relations;
x SUMMARY: Plaintiffs, second wife and son of the deceased, filed
(7) In all civil actions and special proceedings falling within the
exclusive original jurisdiction of a Juvenile and Domestic
Relations Court and of the Courts of Agrarian Relations as now
provided by law; and
(8) In all other cases in which the demand, exclusive of interest,
damages of whatever kind, attorney's fees, litigation expenses,
and costs or the value of the property in controversy exceeds
One hundred thousand pesos (100,000.00) or, in such other
abovementioned items exceeds Two hundred thousand pesos
(200,000.00). (as amended by R.A. No. 7691*)
Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts in civil cases. –
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over civil actions and probate
proceedings, testate and intestate, including the grant of
provisional remedies in proper cases, where the value of the
personal property, estate, or amount of the demand does not
exceed One hundred thousand pesos (P100,000.00) or, in
Metro Manila where such personal property, estate, or amount
of the demand does not exceed Two hundred thousand pesos
(P200,000.00) exclusive of interest damages of whatever kind,
attorney's fees, litigation expenses, and costs, the amount of
which must be specifically alleged: Provided, That where there
are several claims or causes of action between the same or
different parties, embodied in the same complaint, the amount
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of the demand shall be the totality of the claims in all the causes
of action, irrespective of whether the causes of action arose out
of the same or different transactions;
xxx
MENDOZA v. TEH (1997)
SUMMARY: Adelia Mendoza filed a complaint for ‘reconveyance of
title’ and ‘damages with petition for prelim. injunction’. The
complaint stated, among others, that she should be appointed by
the Court as the judicial administratrix of the intestate estate of her
late husband. RTC dismissed the complaint for alleged lack of
jurisdiction, on the ground that the rules governing an ordinary civil
action (reconveyance) and a special proceeding (appointment of
administratrix) are different. SC reverses RTC; holds that RTC has
jurisdiction.
DOCTRINE: An action for reconveyance is cognizable by the RTC.
Actions “incapable of pecuniary estimation,” such as the
appointment of an administratrix, are likewise under its jurisdiction.
No settlement of estate is involved in the present suit, but merely
an allegation seeking appointment as administratrix, which does
not necessarily involve settlement of estate that would have invited
the exercise of the limited jurisdiction of a probate court. Whether
a particular matter should be resolved by the RTC in the exercise of
its general jurisdiction or its limited probate jurisdiction, is not a
jurisdictional issue but a mere question of procedure.
HEIRS OF YAPTINCHAY v. DEL ROSARIO (1999)
SUMMARY: Petitioners, alleging to be heirs of Guido and Isabel
Yaptinchay, filed an action for annulment/declaration of nullity of
title /reconveyance of property against Golden Bay, et al. Trial court
dismissed their complaint for failure to state cause of action,
holding, among others, that petitioners have not shown any proof
that they have been declared the legal heirs of the deceased couple
Court held that dismissal was proper.
DOCTRINE: The declaration of heirship can be made only in a
special proceeding inasmuch as herein petitioners are seeking the
establishment of a status or right. It cannot be made in an ordinary
civil action, such as an action for reconveyance.
PORTUGAL v. PORTUGAL-BELTRAN (2005)
an action to annul the “Affidavit of Adjudication by Sole Heir of
Estate of Deceased Person” executed by the respondent Leonila,
daughter from first marriage, and to declare as void the TCT
issued in her favor. SC dismissed the case because of the
following circumstances—1. The subject parcel of land in Caloocan
is all that comprises the estate of the deceased, thus it would be
impractical, not expeditious and costly, to still require it to
undergo special proceedings. 2. The parties could and have
already presented evidence to prove heirship in the lower court,
the latter assuming jurisdiction over the issues it defined during
pre-trial.
DOCTRINE:
 Where the adverse parties are putative heirs to the estate of
a decedent or parties to the special proceedings for its
settlement: 1.) if the special proceedings are pending, or 2.) if
there are none but under the circumstances of the case,
there is a need to file one, then the determination of, among
other issues, heirship, should be raised and settled in said
special proceeding.
 Where the 1.) SP had been instituted but had finally closed
and terminated, however, or 2.) if a putative heir has lost the
right to have himself declared in that SP as co-heir and he
can no longer ask for its re-opening, then an ordinary civil
action can be filed for his declaration as heir in order to bring
about the annulment of partition or distribution or
adjudication of a property or properties belonging to the
estate of the deceased.
 REYES V, ENRIQUEZ (2008)
SUMMARY: Petitioners claim that they are the lawful heirs of
Dionisia Reyes who co--‐owned land with Anacleto Cabrera. The
respondents claim that their predecessor--‐in--‐interest, Anacleto
Cabrera and his wife, owned half of the land. The respondents sold
a portion of the land to Sps. Fernandez who tried to register but was
not able because of certain affidavits and certificates. Alleging that
those documents are fraudulent and fictitious, the respondents
filed a complaint for annulment or nullification of the documents
and for damages. They likewise prayed for the "repartition and
resubdivision" of the subject property. RTC dismissed, held that
respondents must first be declared as legal heirs of Anacleto
Cabrera through a special proceeding. SC affirmed. Held that
respondents have to institute a special proceeding to determine
their status as heirs of Anacleto Cabrera before they can file an
ordinary civil action to nullify the documents as well as to cancel
the new transfer certificates of title issued by virtue of the same.
DOCTRINE: Declaration of heirship is improper in an ordinary civil
action since the matter is "within the exclusive competence of the
court in a special proceeding." While a declaration of heirship was
not prayed for in the complaint, it is clear from the allegations
therein that the right the respondents sought to protect or enforce
is that of an heir of one of the registered co--‐owners of the property
prior to the issuance of the new transfer certificates of title that they
seek to cancel. Thus, there is a need to establish their status as
such heirs in the proper forum.
B. Subject Matter
RULE 72 Section 1. Subject matter of special proceedings. —
Rules of special proceedings are provided for in the following
cases:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural
children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation of correction of entries in the civil registry.
C. Applicability of Rules on Civil Actions
RULE 72, Section 2. Applicability of rules of civil actions. — In the
absence of special provisions, the rules provided for in ordinary
actions shall be, as far as practicable, applicable in special
proceedings.
REPUBLIC v. CA (2005)
SUMMARY: The Court of Appeals (CA) denied Republic’s (RP) appeal
on a Declaration of Presumptive Death of Absentee Spouse
Clemente Jomoc because RP only filed a notice of appeal and
without a record on appeal. The CA declared that a petition for a
declaration of presumptive death for the purpose of a subsequent
marriage is a special proceeding which requires a notice of appeal
and record on appeal to be filed within 30 days (Rule 41, Sec. 3).
DOCTRINE: The Supreme Court declared that the petition was a
summary proceeding under the Family Code, not a special
proceeding under the Revised Rules of Court appeal for which calls
for the filing of a Record on Appeal. It being a summary ordinary
proceeding, the filing of a Notice of Appeal from the trial courts
order sufficed.
SHEKER v. ESTATE OF SHEKER (2007)
SUMMARY: Petitioner filed a contingent money claim for his agent’s
commission and reimbursement for expenses incurred.
Respondent moved for the dismissal of the claim as: the claim was
not accompanied by a certification against non-forum shopping and
a written explanation why the claim was not filed and served
personally; and the petitioner did not pay the requisite docket fee
at the time of filing. SC held that RTC erred in dismissing the claim.
DOCTRINE: First, a money claim is only an incidental matter in the
main action for the settlement of the decedent’s estate. Petitioner’s
money claim, not being an initiatory pleading, does not require a
certification against non-forum shopping. Second, nonpayment of
filing fees for a money claim against the estate is not one of the
grounds for dismissing such claim. And lastly, RTC should have
relaxed and liberally construed the procedural rule on the
requirement of a written explanation for non-personal service in the
interest of substantial justice.
D. Distinction from Civil Action
RULE 1, Section. 3(a). A civil action is one by which a party sues
another for the enforcement or protection of a right, or the
prevention or redress of a wrong.

Aside from the special proceedings provided in §1, other special

Ordinary Civil Action Special Proceeding
proceedings are provided for in various laws and issuances. The
To protect/enforce a right or To establish a right/status/fact
above enumeration is also not exclusive: any petition whose main
prevent/ redress a wrong
purpose is to establish a status, right, or particular fact may be
included as a special proceeding. Involves 2 or more parties May involve only 1 party
Governed by ordinary rules Governed by special rules,
HERNAEZ, JR. v. IAC (1992) supplemented by special supplemented by ordinary rules
SUMMARY: Evelyn Palmes filed a complaint against Teodoro rules
Hernaez for the compulsory recognition of her (their) child Teodoro Courts of GENERAL Courts of LIMITED jurisdiction
Jr with support pendent lite. The declared Jr. as a recognized jurisdiction
natural child and ordered a P400 monthly support. Teodoro tried to Initiated by pleading, and Initiated by petition, parties
appeal the ruling but it is way past the reglementary period. Later parties respond through an respond through an opposition
on, Teodoro filed a relief from judgment alleging that he was not answer
aware of the RTC decision. Teodoro’s wife together with their six Laws on pleadings Laws on pleadings generally
children also filed a Petition for Relief from Judgment with Motion applicable: filing of an not applicable.
to Intervene because they were not included as parties in the answer, counterclaim, cross-
instant case. In the end, declared the decision of the trial court null claim, third-party complaint
and void for lack of summons by publication being an action in rem. Period of appeal only 15 Period to appeal is 30 days.
DOCTRINE: The Supreme Court ruled that an action for compulsory days and notice of appeal is Record of appeal is required in
recognition is an ordinary civil action. Notice of an action for sufficient. addition to a notice of appeal.
compulsory recognition need not be given to compulsory heirs.
2
 HAGANS v. WIZLIZEMUS (1920)
DOCTRINE: Distinction between an "action" and a "special
proceeding." -> ACTION: a formal demand of one's legal rights in a
court of justice in the manner prescribed by the court or by the law.
It is the method of applying legal remedies according to definite
established rules. SPECIAL PROCEEDING: an application or
proceeding to establish the status or right of a party, or a particular
fact. CAB: Applicable provision only allows judge to appoint
assessors in an ACTION, not a special proceeding. He is not
authorized under the law to appoint assessors for the purpose of
fixing the amount due to an administrator or executor for his
services and expenses in the care, management, and settlement of
the estate of a deceased person in a special proceeding.

VDA, DE MANALO v. CA (2001)

SUMMARY: Troadio Manalo died intestate. His children filed a
petition for the judicial settlement of the estate of Troadio and for
the appointment of Romeo, one of the children, as administrator.
Pilar Vda de Manalo, wife of Troadio, opposed the petition.
Petitioners contend that the proceedings in the RTC is not a special
proceeding, but an ordinary civil action and should be dismissed
based on Rule 16, Sec. 1(j) for failure of the Respondents to aver
that earnest efforts toward a compromise involving members of the
same family have been made prior to the filing of the petition. SC
held that it is not an ordinary civil action, but a special proceeding.
Petitioners argue that Art. 222 of the NCC should apply. SC held
that it should not. The provision applies specifically to civil actions.
DOCTRINE: A civil action is an action field in a court of justice,
whereby a party sues another for the enforcement of a right or the
prevention or redress of a wrong. It is essentially adversarial. The
petition is a special proceeding and, as such, it is a remedy whereby
the petitioners (Respondents in this case) therein seek to establish
a status, a right, or a particular fact. It must be emphasized that the
Petitioners/Oppositors are not being sued in SP. PROC. No. 92-
63626 for any cause of action as in fact no defendant was
impleaded therein.

NATCHER v, CA (2001)
SUMMARY: Graciana died, leaving husband (Graciano) and 6
children as heirs. Graciano remarried and sold his share to his new
wife, Natchar. The children filed for reconveyance, claiming nullity
of sale and prejudice of legitimes. RTC ruled in favor of Natchar,
holding that the transfer of property constituted advancement of
inheritance. CA reversed, holding that RTC did not have jurisdiction
to rule on questions on advancement. SC affirms CA.
DOCTRINE: A civil action is a formal demand of one's right in a court
of justice in the manner prescribed by the court or by the law. It is
the method of applying legal remedies according to definite
established rules. The term "special proceeding" may be defined as
an application or proceeding to establish the status or right of a
party, or a particular fact. These are proceedings that are instituted
and prosecuted according to special rules prescribed by law.

“ ’ ’ ”

3
PART TWO: RULES CONFERRING POWER OVER ANOTHER’S PROPERTY
II. SETTLEMENT OF ESTATE OF DECEASED PERSONS
Remedy if venue improperly laid
Nature, modes and kinds of settlement Ordinary appeal under Rule 40 or 41, not
Nature of proceedings In rem General rule
certiorari or prohibition
Modes of settlement Extrajudicial
Judicial If want of jurisdiction appears on the record of
Exception
Affidavit of self-adjudication the case, motion to dismiss
Kinds of extrajudicial Extrajudicial settlement by agreement
settlement Summary settlement of estate of small
value Effect of venue improperly laid
It is basis for objection, which if seasonably raised, should lead
Kinds of judicial Partition under Rule 69 to the dismissal of the petition and the institution of proceedings
settlement Testate proceedings before the proper court. But if not seasonably raised, then it is
Intestate proceedings waived.

A. Venue and Process 3. Extent of jurisdiction of probate court

1. Which court has jurisdiction Probate court is of limited jurisdiction

General rule
Jurisdiction (dependent upon value of decedent’s estate) BP 129 Can decide on:
Within Metro Gross value does not exceed P400k—MTC 1. Determination of heirship
Manila Gross value exceeds P400k—RTC 2. Identification of properties of estate
3. Distribution of properties
Outside Metro Gross value does not exceed P300k—MTC
Probate court cannot decide questions as to ownership of
Manila Gross value exceeds P300k—RTC property alleged to be part of the estate of the deceased but
claimed by some other person to be his property.
Exclusionary rule
The court that first takes cognizance of the Exceptions:
General rule settlement exercises jurisdiction to the (1) In a provisional manner to determine whether said property
exclusion of all other courts should be included or excluded in the inventory, without
prejudice to final determination of title in a separate action
Exception Estoppel by laches [Cuizon v Ramolete (1984)]
(2) With consent of all the parties, without prejudice to third
2. Venue in judicial settlement of estate persons [Trinidad v. CA (1991)]
(3) If the question is one of collation or advancement [Coca v.
RULE 73, Section 1. Where estate of deceased persons settled. — Borromeo (1978)]
If the decedents is an inhabitant of the Philippines at the time of (4) When the estate consists of only one property [Portugal v.
his death, whether a citizen or an alien, his will shall be proved, or Portugal-Beltran (2005)]
letters of administration granted, and his estate settled, in the
Court of First Instance in the province in which he resides at the RULE 73, Section 2. Where estate settled upon dissolution of
time of his death, and if he is an inhabitant of a foreign country, the marriage. — When the marriage is dissolved by the death of the
Court of First Instance of any province in which he had estate. The husband or wife, the community property shall be inventoried,
court first taking cognizance of the settlement of the estate of a administered, and liquidated, and the debts thereof paid, in the
decedent, shall exercise jurisdiction to the exclusion of all other testate or intestate proceedings of the deceased spouse. If both
courts. The jurisdiction assumed by a court, so far as it depends on spouses have died, the conjugal partnership shall be liquidated in
the place of residence of the decedent, or of the location of his the testate or intestate proceedings of either.
estate, shall not be contested in a suit or proceeding, except in an
appeal from that court, in the original case, or when the want of 4. Powers and duties of probate court
jurisdiction appears on the record.
RULE 73, Section 3. Process. — In the exercise of probate
Decedent Venue jurisdiction, Courts of First Instance may issue warrants and
Inhabitant of the Philippines at RTC of the province in process necessary to compel the attendance of witnesses or to
time of death (citizen/alien) which he resides carry into effect theirs orders and judgments, and all other powers
granted them by law. If a person does not perform an order or
Inhabitant of foreign country RTC of any province in judgment rendered by a court in the exercise of its probate
which he had estate jurisdiction, it may issue a warrant for the apprehension and
imprisonment of such person until he performs such order or
Rule 73 relates to venue and not to jurisdiction judgment, or is released.
The place of residence of the deceased in settlement of estates,
probate of will, and issuance of letters of administration does not Purposes for which warrants may be issued
constitute an element of jurisdiction over the subject matter. It is 1) To compel attendance of witnesses
only constitutive of venue. 2) To carry into effect court orders and judgments
3) To apprehend and imprison a person who does not perform an
order/judgment rendered by the probate court, until such
person performs such order/judgment or is released
4
Rule on issuance of writs of execution
Probate court cannot issue writs of execution,
because executor/administrator may satisfy
General rule claims against the estate without need of
executory process
To satisfy contributive share of devisees,
legatees, and heirs, when the latter had
entered prior possession over the estate
Exceptions
To enforce payment of expenses of partition
To satisfy the costs when a person is cited for
examination in probate proceedings
RULE 73, Section 4. Presumption of death. — For purposes of
settlement of his estate, a person shall be presumed dead if absent
and unheard from for the periods fixed in the Civil Code. But if such
person proves to be alive, he shall be entitled to the balance of his
estate after payment of all his debts. The balance may be recovered
by motion in the same proceeding.
For purposes of succession, there is no need for independent
action for Declaration of Presumptive Death under the Civil Code.
Rules for recovery in case absentee returns
What may be Balance of estate after payment of all debts
recovered
How recovered By motion in the same proceeding
All debts of absentee must have been paid
He shall recover his property in the condition in
Conditions of which it may be found, as well as the price of
recovery any property that may have been alienated or
the property acquired with the proceeds of
such alienation
He is not entitled to the fruits of the rent
FULE v. CA (1956)
SUMMARY: Petitioner filed a petition for the issuance of letters
administration in CFI Calamba. However, the court dismissed the
case, because the venue was improperly laid. Rule 73 Sec. 1
provides that the venue for estate proceedings of a resident is in
the CFI wherein the decedent last resided. Here, the deceased last
resided in QC, so the petition should have been filed with the CFI
QC.
DOCTRINE: “Residence” does not operate as its legal definition of
“domicile,” but instead means the decedent’s physical, actual, or
physical habitation.
EUSEBIO v. EUSEBIO (1956)
SUMMARY: Eugenio Eusebio filed in the CFI of Rizal a petition for
his appointment as administrator of the estate of his father
(decedent), who, according to the petition, resided in Quezon City.
The illegitimate children of the decedent opposed, claiming that the
decedent was domiciled in San Fernando, Pampanga. CFI overruled
their objection. The SC reversed and ordered the dismissal of
Eusebio’s petition for improper venue. The fact that the decedent
purchased a house and lot in QC less than 1yr before his death, in
order to receive treatment for his heart condition, did not change
the decedent’s domicile. It is well settled that “a domicile once
acquired is retained until a new domicile is gained.” And to
establish another domicile, the conditions are essential: 1)
Capacity to choose and freedom of choice; 2) Physical presence at
the place chose; and 3) Intention to stay therein permanently. The
last condition has not been proven by direct evidence. It is well
5
settled that “domicile is not commonly changed by presence in a
place merely for one’s own health, even if coupled with knowledge
that one will never again be able, on account of illness, to return
home.”
JAO v. JAO (2002)
SUMMARY: Perico instituted a petition for issuance of letters of
administration before the RTC QC over the estate of his parents. His
brother filed a motion to dismiss for improper venue avering that
the permanent residence of the decedents in Pampanga should
determine the venue. Court dismissed the motion strictly applying
Rule 73, Sec. 1. Eusebio v. Eusebio is inapplicable because the
evidence including death certificates show that the decedents
physical presence in QC in the residence of the petitioner was more
than temporary. Furthermore, venue for the settlement of estates
does not only refer to permanent residence or domicile because it
does not necessarily follow that the records of a person’s properties
are kept in the place where he permanently resides.
MALIG v. BUSH (1969)
SUMMARY: Plaintiffs alleged that they were the compulsory heirs of
the deceased Bush but an alleged wife obtained a partition of the
property in the probate court through a fraudulent will. Former filed
a case in the ordinary courts to recover the inheritance and alleged
that they were the acknowledged children of the deceased.
Defendant challenged the jurisdiction under Sec1. Rule 75. As for
Sec 1, Rule 75, it fixes jurisdiction for prupose of special proceeding
f the settlement of the estate of the deceased. The matter concerns
venue; that "the court first taking cognizance of the settlement of
the estate of a decedent, shall exercise jurisdiction to the exclusion
of all other courts." Action is not necessarily to annul the partition
by probate court and to reopen the proceedings but to recover
portion of their alleged inheritance which they were deprived due
through fraud.
MALOLES v. PHILLIPS (2000)
SUMMARY: Dr. Arturo de Santos filed a petition for probate of his
will in RTC-Makati, Branch 61. After his death, Pacita de los Reyes
Phillips (executrix of will) filed a motion for the issuance of letters
testamentary with Branch 65. Octavio Maloles II sought to
intervene in the case pending in Branch 65. Judge Abad Santos
ordered the transfer of the case to Branch 61, on the ground that
it is related to the case before Judge Gorospe of RTC Branch 61 and
having begun the probate proceedings of the estate of the
deceased, continues to exercise jurisdiction to the exclusion of all
others. The SC ruled that Branch 65 had jurisdiction over the
petition for the issuance of letters testamentary. After the
allowance of the will of Dr. de Santos there was nothing else for
Branch 61 to do except to issue a certificate of allowance of the
will. Rule 73, Sec. 1 does not bar other branches of the same court
from taking cognizance of the settlement of the estate of the
testator after his death. When a case is filed in one branch,
jurisdiction over the case does not attach to the branch or judge
alone, to the exclusion of the other branches.
URIARTE v. CFI (1970)
SUMMARY: Vicente filed a petition for settlement of estate of the
deceased Don Juan with the Negros Court. He is also alleging he is
the natural son. Higinio (Don Juan’s nephew) opposed the petition
since he alleged that Don Juan executed a will in Spain. Juan
(doesn’t state what his relation to Don Juan is) commenced
proceedings with the Manila Court to probate the document which
was allegedly Don Juan’s will. Vicente opposed the Manila Court
proceedings stating that Negros already took cognizance of the
case. SC held that Manila Court and Negros Court have concurrent
jurisdiction since decendet left property in both places (Rule 73,
Sec 1). SC also held that testate proceedings for the settlement of
the estate of a deceased person take precedence over intestate
proceedings for the same purpose. If it is found that decedent left
a will, proceedings for the probate of the latter should replace the MARCOS v. CA (1997)
intestate proceedings. However, Juan should have filed the probate SUMMARY: Bongbong Marcos questioned the act of the
of the will with the Negros Court for the orderly and inexpensive Commissioner of Internal Revenue (CIR) in assessing, and
administration of justice. But this is only a procedural defect (wrong collecting through the summary remedy of Levy on Real Properties,
venue), which was waived by Vicente through laches. estate and income tax delinquencies upon the estate and
properties of his father, despite the pendency of the proceedings
RODRIGUEZ v. DE BORJA (1966) on probate of the will of the late president in RTC Pasig, Branch
SUMMARY: Fr. Celestino Rodriguez, a parish priest in Bulacan, died 156. The Court held that such taxes were exempted from the
in 1963. Not long thereafter, on March 4, 1963, Apolonia and application of the statute of non-claims, and this is justified by the
Adelaida delivered to the Clerk of Court of Bulacan a purported last necessity of government funding (lifeblood theory).
will and testament of Fr. Rodriguez. On March 12, 8AM, Angela and
Maria filed before CFI Rizal a petition for settlement of intestate ALIPIO v. CA (2000)
estate of Fr. Rodriguez. At 11AM of the same day, Apolonia and SUMMARY: A collection of sum of money was filed against the
Adelaida filed a petition for probation of will at CFI Bulacan. Angela spouses for nonpayment of rentals in a fishpond sublease. The
and Maria averred that the CFI Bulacan lacked jurisdiction citing husband died so wife filed MTD alleging that the action should be
the pending proceedings at the CFI Rizal given the provision in Rule filed in estate proceedings. RTC denied the motion and ruled that
73, Sec. 1. The SC held that reliance on the provision is erroneous the wife can be independently pleaded as she is a party to the
thus, the CFI Bulacan had jurisdiction. Doctrine: Under Rule 73, contract. The death of her husband excluded the latter from the
Sec. 1, the domicile of the testator only affects the venue but not proceedings. SC reversed.
the jurisdiction of the court. Also, in cases where two or more courts DOCTRINE: Where a complaint is brought against the surviving
have been asked to take cognizance of the settlement of the estate, spouse for the recovery of an indebtedness chargeable against said
only one could be of proper venue, yet the rule grants precedence conjugal partnership, any judgment obtained thereby is void. The
to that Court whose jurisdiction is first invoked, without taking proper action should be in the form of a claim to be filed in the
venue into account. Therefore, a court is entitled to assume testate or intestate proceedings of the deceased spouse.
jurisdiction to the exclusion of all other courts, even if it were a case
of wrong venue. B. Summary Settlement of Estates
BERNARDO v. CA (1963) Nature of settlement in case decedent died intestate
SUMMARY: Eusebio died and his will was admitted to probate. Judicial administration proceedings are
When his widow, Hermogena, died, Hermogena’s heirs opposed the General rule required if decedent died intestate
partition submitted by Eusebio’s executor. Hermogena’s heirs
claims that ½ of Eusebio’s estate were conjugal properties, and Extrajudicial settlement by agreement between
thus, not subject of the partition of Eusebio’s estate. Eusebio’s Exceptions heirs/self-adjudication
executor contends that the properties in question were donated by Summary settlement of estates of small value
Hermogena to Eusebio and even assuming that they could question
the validity of the donation, the same must be litigated not in the
testate proceeding but in a separate civil action. The Court held that Extrajudicial Settlement Summary Settlement
it has been held that when the parties interested are all heirs of the Court intervention not Summary judicial adjudication
deceased, it is optional to them to submit to the probate court a required needed
question as to title to property, and when so submitted, said No will (intestate) Will may or may not exist
probate court may definitely pass judgment thereon; and that with (intestate/testate)
the consent of the parties, matters affecting property under judicial No debts Debts may or may not exist
administration may be taken cognizance of by the court in the Heirs are all of age, or
course of intestate proceeding provided interests of third persons minors are represented by
are not prejudiced . In this case, the matter in controversy is the judicial or legal reps
question of ownership of certain of the properties involved—
whether they belong to the conjugal partnership or to the husband Instituted only at the May be instituted by any
exclusively. The Court held that this is a matter properly within the instance and by interested party even by a
jurisdiction of the probate court which necessarily has to liquidate
agreement of all heirs creditor of the estate without the
the conjugal partnership in order to determine the estate of the consent of the heirs.
decedent which is to be distributed among his heirs who are all
Value of the estate is Gross value of estate may not
parties to the proceedings, including, the widow. There are no third
IMMATERIAL exceed P10,000
parties whose rights may be affected.
Bond filed with Register of Bond filed with and to be
JIMENEZ v. IAC (1990) Deeds in an amount equal determined by the court
to the value of the personal
SUMMARY: When their parents died, the children from the second
marriage sought to include in the inventory the properties procured property
by their father during his first marriage. This was opposed by the
children in the first marriage by motion of exclusion which was 1. Extra-judicial settlement by agreement
granted by the trial court. The children of the second marriage then between heirs
filed an amended complaint to the trial court to recover
possession/ownership of the subject 5 parcels of land. This RULE 74, Section 1. Extrajudicial settlement by agreement
complaint was dismissed by the lower court on the basis of Res between heirs. — If the decedent left no will and no debts and the
Judicata. However the SC held that the lower court may hear the heirs are all of age, or the minors are represented by their judicial
2nd case to recover possession/ownership because there is no Res or legal representatives duly authorized for the purpose, the
Judicata, there is a difference in the causes of action. The 1st case parties may without securing letters of administration, divide the
was done by the TC as a probate court with limited jurisdiction while estate among themselves as they see fit by means of a public
the question of ownership and possession can only be settled in a instrument filed in the office of the register of deeds, and should
separate action. they disagree, they may do so in an ordinary action of partition. If
6
 there is only one heir, he may adjudicate to himself the entire
estate by means of an affidavit filled in the office of the register
of deeds. The parties to an extrajudicial settlement, whether by
public instrument or by stipulation in a pending action for
partition, or the sole heir who adjudicates the entire estate to
himself by means of an affidavit shall file, simultaneously with
and as a condition precedent to the filing of the public
instrument, or stipulation in the action for partition, or of the
affidavit in the office of the register of deeds, a bond with the said
register of deeds, in an amount equivalent to the value of the
personal property involved as certified to under oath by the
parties concerned and conditioned upon the payment of any just
claim that may be filed under section 4 of this rule. It shall be
presumed that the decedent left no debts if no creditor files a
petition for letters of administration within two (2) years after the
death of the decedent.
The fact of the extrajudicial settlement or administration shall be
published in a newspaper of general circulation in the manner
provided in the nest succeeding section; but no extrajudicial
settlement shall be binding upon any person who has not
participated therein or had no notice thereof.
Requisites:
(1) Decedent died intestate
(2) No debts OR the heirs have already paid such at the time of
partition
(3) Heirs are all of age OR the minors are represented by their
judicial or legal representatives
(4) Settlement made in public instrument filed with the register of
deeds
(5) Fact of the extrajudicial settlement shall be published in a
newspaper of general circulation 3 times a week, once each
week.
Procedure
Death of the decedent
 belonging to the deceased, or both. Such bond and such real
Division of estate in public instrument or affidavit of
adjudication
 distribution, notwithstanding any transfers of real estate that
Filing of the public instrument, or affidavit of adjudication if
there is only one heir, and bond equivalent to the amount of
personal property with the proper Registry of Deeds
 years from the time of distribution/ publication.
Publication of notice of the fact of extrajudicial settlement once
a week for 3 consecutive weeks in a newspaper of general
circulation in the province, and after such other notice to
interested persons as the court may direct
 2. When all the persons or heirs of the decedent took part in
Hearing to be held not less than 1 month nor more than 3
months from the date of the last publication of notice
If there is no The parties may divide the estate among
disagreement themselves by means of a public instrument
between the filed in the office of register of deeds.
heirs
If there is They may divide the estate in an ordinary
disagreement action of partition.
He may adjudicate to himself the entire
If only one heir estate by means of an affidavit filed in the
Registrar of Deeds.
Effect if made in a private instrument
If made in a private, instead of a public, instrument, the EJS is still
valid. Reformation under Art. 1359 of the Civil Code may be
compelled.
7
Effect on heirs who had no knowledge or participation in the
extrajudicial settlement
Publication of the settlement under Sec. 1 does not constitute
constructive notice to heirs who had no knowledge or who had not
participated in the settlement, because such is only publication
of the fact of execution of the agreement by which the estate is
settled.
2. Two year prescriptive period
RULE 74, Section 3. Bond to be filed by distributees. — The court,
before allowing a partition in accordance with the provisions of
the preceding section, my require the distributees, if property
other than real is to be distributed, to file a bond in an amount to
be fixed by court, conditioned for the payment of any just claim
which may be filed under the next succeeding section.
RULE 74, Section 4. Liability of distributees and estate. — If it
shall appear at any time within two (2) years after the settlement
and distribution of an estate in accordance with the provisions of
either of the first two sections of this rule, that an heir or other
person has been unduly deprived of his lawful participation in the
estate, such heir or such other person may compel the
settlement of the estate in the courts in the manner hereinafter
provided for the purpose of satisfying such lawful participation.
And if within the same time of two (2) years, it shall appear that
there are debts outstanding against the estate which have not
been paid, or that an heir or other person has been unduly
deprived of his lawful participation payable in money, the court
having jurisdiction of the estate may, by order for that purpose,
after hearing, settle the amount of such debts or lawful
participation and order how much and in what manner each
distributee shall contribute in the payment thereof, and may
issue execution, if circumstances require, against the bond
provided in the preceding section or against the real estate
estate shall remain charged with a liability to creditors, heirs, or
other persons for the full period of two (2) years after such
may have been made.
Claim by creditors and deprived heirs must be filed within 2
Applicability
1. To persons who have participated in or took part in or had
notice of extrajudicial partition; and
the extrajudicial settlement
Presumption of no debts
It shall be presumed that the decedent left no debts if no creditor
files a petition for letters of administration within 2 years after
the death of the decedent.
RULE 74, Section 5. Period for claim of minor or incapacitated
person. — If on the date of the expiration of the period of two (2)
years prescribed in the preceding section the person authorized
to file a claim is a minor or mentally incapacitated, or is in prison
or outside the Philippines, he may present his claim within one
(1) year after such disability is removed.
Rule on claiming against bond
Claim must be brought within 2 years by
prejudiced heir, unpaid creditor, or any other
person unduly deprived of lawful participation in
the estate.
General rule After the lapse of 2 years, an ordinary action
may be brought against the distributees
according to the statute of limitations, but not
against the bond.
If on the date of expiration of the 2 year period,
the heir, creditor or deprived person is:
1. A minor;
2. Incapacitated;
Exception 3. In prison; or
4. Outside the PH;
then he may present his claim within one year
after his disability is removed.
3. Affidavit of self-adjudication by sole heir
Definition
An affidavit executed by the sole heir of a decedent, adjudicating to
himself the latter’s entire estate. The requisites are similar to an
EJS by agreement, though in this case, there must be a sole heir.
Bond Requirement
File a bond equal to the value of the personal property involved as
certified to under oath by the parties, conditioned upon the
payment of any just claim that may be filed (Sec. 1, Rule 74)
4. Summary settlement of estates of small value,
when allowed
RULE 73, Section 2. Summary settlement of estate of small
value. — Whenever the gross value of the estate of a deceased
person, whether he died testate or intestate, does not exceed ten
thousand pesos, and that fact is made to appear to the Court of
First Instance having jurisdiction of the estate by the petition of
an interested person and upon hearing, which shall be held not
less than one (1) month nor more than three (3) months from the
date of the last publication of a notice which shall be published
once a week for three (3) consecutive weeks in a newspaper of
general circulation in the province, and after such other notice to
interest persons as the court may direct, the court may proceed
summarily, without the appointment of an executor or
administrator, and without delay, to grant, if proper, allowance of
the will, if any there be, to determine who are the persons legally
entitled to participate in the estate, and to apportion and divide
it among them after the payment of such debts of the estate as
the court shall then find to be due; and such persons, in their
own right, if they are of lawful age and legal capacity, or by their
guardians or trustees legally appointed and qualified, if
otherwise, shall thereupon be entitled to receive and enter into
the possession of the portions of the estate so awarded to them
respectively. The court shall make such order as may be just
respecting the costs of the proceedings, and all orders and
judgments made or rendered in the course thereof shall be
recorded in the office of the clerk, and the order of partition or
award, if it involves real estate, shall be recorded in the proper
register's office.
8
When Allowed
(1) Gross value of estate does not exceed P10,000
(2) Fact is made to appear to the RTC
(3) Through petition of an interested person
(4) Upon hearing
 Held not less than 1 month nor more than 3 months
 Counted from the date of the last publication of a notice
(5) Notice
 Which shall be published once a week for 3 consecutive
weeks
 In a newspaper of general circulation in the province
 It is not required that publication be for a complete 21
days. What is required is that it be published for once a
week for 3 consecutive weeks.
(6) Notice to interested persons as the court may direct. (Sec. 2,
Rule 74)
Upon fulfillment of the requisites, the court may proceed summarily
without the appointment of an executor/administrator and without
delay:
(1) to grant, if proper, allowance of the will, if any there be
(2) to determine who are persons legally entitled to participate in
the estate
(3) to apportion and divide among them after the payment of such
debts of the estate
(4) persons in own right if of lawful age, or their guardians, will be
entitled to receive and enter into possession of the portions of
the estate so awarded to them respectively. (Sec. 2, Rule 74)
Procedure
Death of the decedent

Application for summary settlement with an allegation that
the gross value of the estate does not exceed P10K

Publication of notice of the fact of summary settlement once
a week for 3 consecutive weeks in a newspaper of
general circulation in the province, and after such other
notice to interested persons as the court may direct

Hearing to be held not less than 1 month nor more than 3
months from the date of the last publication of notice

Court to proceed summarily, without appointing an
executor/administrator (executor/administrator), and to
make orders as may be necessary

Grant allowance of the will, if any

Determine persons entitled to estate

Pay debts of estate which are due

Filing of bond fixed by the court

Partition of estate
There is no requirement regarding the lack of debts (unlike
extrajudicial partition) in summary settlement of estates of small
value since the court will make provisions for such in its resolution
of the proceedings.

5. Remedies of aggrieved parties after extra-
judicial settlement of estate
Remedies of aggrieved parties after settlement of estate
(according to mode of settlement)
1. Claim against the bond or real estate or
both within 2 years
2. Rescission in case of preterition with
bad faith of compulsory heir in partition
3. Reconveyance of real property based
Extrajudicial on implied or constructive trust, within
10 years from date of registration or
date issuance of certificate of title , or
date of actual discovery of fraud, if
registration made in bad faith
4. Action to annul deed of EJS for fraud
within 4 years from discovery thereof
(Civil Code)
1. Petition for relief on ground of FAME
(fraud, accident, mistake, or excusable
negligence),
2. 60 days after petitioner learns of
judgment/final order/other proceeding
to be set aside, and not more than 6
Judicial months after entry of such
judgment/final order (Rule 38)
3. Reopening by intervention, anytime
before rendition of judgment, as long
as within reglamentary period of 2
years
4. Petition to annul judgment on grounds
of extrinsic fraud, within 4 years, or
lack of jurisdiction, at any time before
barred by laches/estoppel (Rule 47)
PEREIRA v. CA (1989)
SUMMARY: The decedent passed away with no will and no debts.
His only heirs, both of age, were his legitimate spouse and sister.
The sister instituted a special proceeding for the issuance of letters
administration. The RTC appointed her as administratrix. The CA
affirmed this, but the SC reversed and revoked the letters of
administration. Although the General Rule when a person dies
leaving property w/o will, is that the same should be judicially
administered and a qualified administrator should be appointed
(Sec.6, Rule 78), the Exception is in Sec.1, Rule 74 - When all heirs
are of lawful age and there are no debts due from the estate, they
may agree in writing to partition the property without institution the
judicial administration or applying for the appointment of an
administrator. Thus, when partition is possible, either in or out of
court, the estate should not be burdened with an administration
proceeding without good and compelling reasons. What constitutes
“good reason” depends on the circumstances of the case. The
reasons of the sister in the case at bar, aka to obtain possession of
the properties, is NOT a compelling reason to burden the estate
with costs and expenses of an administration proceeding.
AVELINO v. CA (2000)
SUMMARY: Petitioner filed a case for petition for the issuance of
letters of administration of the estate of her father asking to be
appointed administrator. Other heirs file a motion to convert the
said judicial proceedings to an action for judicial partition. The
Court ruled that the motion was properly granted. When the
intestate decedent left no debts and the heirs and legatees are all
of age, Sec.1, Rule 74 makes an exception to the requirement of
appointment of an administrator found in Rule 78. Where the more
expeditious remedy of partition is available to the heirs, then the
9
heirs or the majority of them may not be compelled to submit to
administration proceedings. Administration proceedings are not
required even if there is yet to be a determination of the extent of
the decedent’s estate because a complete inventory of the estate
may be done during the partition proceedings.
REBONG v. IBANEZ (1947)
SUMMARY: Petitioner filed a petition to cancel the claims
annotated by the creditor and alleged heirs of deceased
predecessor-in-interest in order to mortgage the land she inherited.
She allege that according to Sec 112, Art 496 court can cancel it
on “the ground that registered interests of any description, whether
vested, contingent, expectant, or inchoate, have terminated and
ceased, or that new interests have arisen or been created which do
not appear upon the certificate” while filing a bond. SC: Since two
year period to claim in Sec 1 and 4 of Rule 74 of ROC have not yet
elapsed, lower court cannot order the cancelation of the
annotation. Neither Rule 74 nor Sec 112 authorizes substitution of
bond for such interest.
HERNANDEZ v. ANDAL (1947)
SUMMARY: The lower court ruled that parol evidence of partition
was inadmissible. The SC held that an agreement of partition need
not be in writing under the statute of frauds. There are no
indications in the phraseology of Rule 74, Sec. 1 that affirms that
writing is the act that confers legal validity upon the agreement of
partition. Rule 74, Sec. 1 contains no such express or clear
declaration that the required public instruments is to be
constitutive of a contract of partition or an inherent element of its
effectiveness as between the parties.
SPS. DOMINGO v. ROCES (2003)
SUMMARY: Sps. Roces owned two parcels of land. GSIS caused an
annotation of an affidavit of adverse claim on the titles of these
properties due to an alleged mortgage. After Cesar Roces’ death,
Montinola (wife’s nephew) executed an affidavit of self-adjudication
over the properties. He then sold these properties to Sps. Domingo.
After the children/respondents of Sps. Roces found out about the
sale, they sought to declare the Montinola’s affidavit and deed of
sale as void. Sps. Domingo claim that they are innocent purchasers
for value. SC held that Sps. Domingo are not innocent purchasers
for value because the annotation was suuficient notice to them of
Montinola’s limitation to dipose of the property. Sec. 4, Rule 74 (as
to the liability of distributees and estate) covers transfers of real
property to any person. Its effects are not limited to the heirs or
original distributees of the estate properties, but shall affect any
transferee (such as Sps. Domingo) of the properties.
GERONA v. DE GUZMAN (1964)
SUMMARY: Plaintiffs Ignacio Gerona et. al. were grandchildren of
Marcelo De Guzman from the latter’s daughter during his first
marriage. When he died however, his children from his second
marriage Carmen De Guzman et. al., executed and registered on
June 25, 1948 a Deed of Extra-Judicial Settlement thereby
transferring the TCTs of Marcelo’s lands to their name. Ignacio et.
al. discovered the fraud allegedly sometime in 1956 or 1957. On
November 4, 1958, they filed a case to recover their share from
Respondents Carmen et al. The SC held that the applicable
prescriptive period was 4 years from date of discovery of the fraud.
The discovery was then deemed to be on June 25, 1948, the day
the Deed of EJS was registered because it constituted constructive
knowledge to the whole world. The action, filed more than ten years
later, was ruled to have prescribed. [Note: Later in Almerol v.
Bagumbaran (1987), the SC clarified that the Gerona decision used
the period of 4 years after discovery of the fraud because that was
the period provided under the Old Civil Code (Act. No. 190) for
actions for reconveyance. The latter was the applicable law
because the discovery on June 25, 1948 occurred prior to the
effectivity of the New CC on August 30, 1950.]
 AMEROL v. BAGUMBARAN (1987) Custodian of will Executor named in will
SUMMARY: Bagumbaran filed a case to recover a land he allegedly
owns which is occupied by the Amerols. In his counterclaim, the Within 20 days after he
latter alleged that Bagumbaran obtained title through fraud. Amerol knows of the testator’s
also prays for reconveyance. The trial court found that Bagumbaran death, OR
is guilty of fraud. However, the trial court denied the counterclaim Within 20 days after he
Period to Within 20 days after
of the Amerols, for the affirmative relief of reconveyance on the knows of the testator’s
deliver will discovering that he is
ground of prescription. The SC annulled the CFI decision. The Court death
named testator, if he
held that the act of Bagumbaran in misrepresenting that he was in obtained such knowledge
actual possession and occupation of the property created an
after the testator’s death
implied trust in favor of the actual possessor. Thus, the prescriptive
period for an action for reconveyance, as this case, is ten years. To whom will Court with jurisdiction, or
The point of reference is, or the ten year prescriptive period to be
Executor named in will Court with jurisdiction
commences to run from, the date of the issuance of the certificate delivered
of title over the real property. (What is in an action for reconveyance Signify to the court in
is the transfer of the property, which has been wrongfully registered writing whether he
in another person's name, to its rightful and legal owner, or to one Other duties None
accepts or refuses the
with a better right.) trust
Punishment
Fine not exceeding Fine not exceeding
for neglect to
P2,000 P2,000
deliver
C. Production and Probate of Will

Probate or allowance of wills is the act of proving in court a
document purporting to be the last will and testament of the
deceased for the purpose of its official recognition, registration and
carrying out its provision in so far as they are in accordance with
law.
RULE 75, Section 1. Allowance necessary. Conclusive as to
execution. — No will shall pass either real or personal estate unless
it is proved and allowed in the proper court. Subject to the right of
appeal, such allowance of the will shall be conclusive as to its due
execution.
RULE 75, Section 2. Custodian of will to deliver. — The person who
has custody of a will shall, within twenty (20) days after he knows
of the death of the testator, deliver the will to the court having
jurisdiction, or to the executor named in the will.
RULE 75, Section 3. Executor to present will and accept or refuse
trust. — A person named as executor in a will shall, within twenty
(20) days after he knows of the death of the testate, or within
twenty (20) days after he knows that he is named executor if he
obtained such knowledge after the death of the testator, present
such will to the court having jurisdiction, unless the will has reached
the court in any other manner, and shall, within such period, signify
to the court in writing his acceptance of the trust or his refusal to
accept it.
RULE 75, Section 4. Custodian and executor subject to fine for
neglect. — A person who neglects any of the duties required in the
two last preceding sections without excused satisfactory to the
court shall be fined not exceeding two thousand pesos.
RULE 75, Section 5. Person retaining will may be committed. — A
person having custody of a will after the death of the testator who
neglects without reasonable cause to deliver the same, when
ordered so to do, to the court having jurisdiction, may be committed
to prison and there kept until he delivers the will.
10
1. Nature of probate proceeding
Characteristics of probate
(1) In rem—Binding on the whole world
(2) Mandatory—No will shall pass either real or personal property
unless proved and allowed in the proper court
(3) Imprescriptible—May be filed at any time
(4) Doctrine of estoppel inapplicable—Probate is required by
public policy and involves public interest
Determination of Extrinsic and Intrinsic Validity
General rule Only extrinsic validity may be determined during
probate
Intrinsic validity or validity of testamentary provisions
may be determined if:
1. The SC believes that there will be waste of time,
effort, and expense, as well as added anxiety if
Exceptions the validity of the questioned provisions of the
will are not resolved; or
2. All testamentary dispositions are void, and the
defect is apparent on the face of the instrument,
also known as the principle of practical
consideration [Nepomuceno v CA (1985)]. (Ex.
When on the face of the will the petitioner
appears to be preterited)
2. Who may petition for probate
RULE 76, Section 1. Who may petition for the allowance of will. —
Any executor, devisee, or legatee named in a will, or any other
person interested in the estate, may, at any time after the death
of the testator, petition the court having jurisdiction to have the
will allowed, whether the same be in his possession or not, or is
lost or destroyed.
The testator himself may, during his lifetime, petition the court for
the allowance of his will.
Persons who may petition for allowance of the will
(1) Testator himself, during his lifetime
(2) Executor
(3) Devisee or legatee named in the will
(4) Any heir
(5) Any creditor
(6) Any other person interested in the estate, i.e. would be
benefited by the estate
Meaning of interest in estate
An interested party is one who would be benefited by the estate
such as an heir or one who has claim against the estate like a
creditor. [Sumilang v. Ramagosa (1967)]
RULE 76, Section 3. Court to appoint time for proving will. Notice
thereof to be published. — When a will is delivered to, or a petition
for the allowance of a will is filed in, the court having jurisdiction,
such court shall fix a time and place for proving the will when all
concerned may appear to contest the allowance thereof, and shall
cause notice of such time and place to be published three (3)
weeks successively, previous to the time appointed, in a
newspaper of general circulation in the province.
But no newspaper publication shall be made where the petition
for probate has been filed by the testator himself.
RULE 76, Section 4. Heirs, devisees, legatees, and executors to
be notified by mail or personally. — The court shall also cause
copies of the notice of the time and place fixed for proving the will
to be addressed to the designated or other known heirs, legatees,
and devisees of the testator resident in the Philippines at their
places of residence, and deposited in the post office with the
postage thereon prepaid at least twenty (20) days before the
hearing, if such places of residence be known. A copy of the notice
must in like manner be mailed to the person named as executor,
if he be not the petitioner; also, to any person named as co-
executor not petitioning, if their places of residence be known.
Personal service of copies of the notice at lest (10) days before
the day of hearing shall be equivalent to mailing.
If the testator asks for the allowance of his own will, notice shall
be sent only to his compulsory heirs.
Jurisdiction, how acquired
(1) Attaching a mere copy of will to the petition or
(2) Delivery of will, even if no petition is filed or
(3) Filing of the original petition and compliance with Sec 3-4
Rule 76.
a) Publication for 3 weeks of the order
b) Notice to all interested persons (If by mail, 20 days before
hearing; if through personal service, 10 days before hearing)
If testator files for probate of his will, no publication is required and
notice is only to the compulsory heirs. (Sec. 3, Rule 76)
FERNANDEZ v. DIMAGIBA (1967)
SUMMARY: respondent filed a petition for probate of will of de los
reyes. This was opposed by petitioners on the ground of vice of
consent, estoppel, forgery, and revocation. The probate court held
that the will was genuine and duly executed but did not rule yet on
the estoppel and revocation. The court then ruled on the estoppel
and revocation, denying the oppositors on both issues. They
appealed to the CA but was denied because their appeal was not
filed on time. CA says it should have been filed when the court ruled
upon the validity of the will. The issue of estoppel and revocation
was independent of the genuineness and due execution of the will.
SC affirms.
MANINANG v. CA (1982)
SUMMARY: Clemencia Aseneta died leaving a holographic will in
which she left her properties to Soledad Maninang and mentioned
her displeasure towards her “nephew” Bernardo. Soledad sought
the probate of the will, while Bernardo, claiming to be the
decedent’s adopted son and sole heir, filed an intestate case
(argument: he was preterited from the will, hence intestacy should
ensue). The cases were consolidated, but Bernardo later had the
testate case dismissed. SC held that the dismissal was not proper;
generally, the probate of a will is MANDATORY.
11
RODELAS v. ARANZA (2007)
SUMMARY: Rodelas filed petition for probate of the holographic will
of the deceased Bonilla. Her petition was opposed on the ground,
among others, that the alleged holographic will itself, and not a
copy thereof, should be produced; otherwise, it would produce no
effect. CFI dismissed the petition for probate. SC reverses. A
photostatic or xerox copy of the lost or destroyed holographic will
may be allowed because comparison can be made with the
standard writings of the testator, and because then the authenticity
of the handwriting of the deceased can be determined by the
probate court.
ALABAN v. CA (2005)
SUMMARY: Francisco, the sole instituted heir in Soledad’s will, filed
a petition for probate of the same. After the RTC Decision (allowing
the probate of the will of Soledad) became final and executory,
Alaban, et al. filed a motion to reopen the probate proceedings,
which was denied for having been filed out of time. Alaban, et al.
filed a petition for annulment of judgment on the grounds of
extrinsic fraud and lack of jurisdiction. Note that Alaban, et al. did
not avail of the remedies of MNT, MR, Relief from Judgment, etc.,
arguing that they could not have done so since they were not made
parties to the probate proceedings. Court disagreed and held that,
since a petition for probate of a will is one in rem, publication of the
notice brings the whole world as party. Moreover, Court held that
there was no extrinsic fraud committed when Alaban, et al. were
not personally notified of the proceedings, because they were
neither compulsory nor testate heirs who are entitled to be notified
of the probate proceedings under the Rules. DOCTRINE: Notice is
required to be personally given to known heirs, legatees, and
devisees of the testator.
CUENCO v. CA (1973)
SUMMARY: Senator Cuenco died in 1964 and was survived by his
widow Rosa, and children from both first and second marriage.
Lourdes (from first marriage) filed a Petition for Letters of
Administration w/ CFI-Cebu alleging that he died intestate. Rosa
filed a Petition for Probate of Will with CFI-QC. CFI-Cebu issued an
order holding in abeyance its resolution on the Motion to Dismiss
filed by Rosa until after the CFI-QC shall have acted on the petition
for probate. Issue was which court had jurisdiction over the petition.
Court ruled that it was CFI-QC that had jurisdiction, since under Rule
73, section 1, the CFI-Cebu must first take cognizance over the
estate of the decedent and must exercise jurisdiction to exclude all
other courts, which the Cebu court declined to do. Furthermore, as
is undisputed, said rule only lays down a rule of venue and the
Quezon City court indisputably had at least equal and co-ordinate
jurisdiction over the estate. Also, probate proceedings take
precedence over intestate proceedings.
DOCTRINE: The probate of the will is a proceeding in rem. The
notice by publication as a prerequisite to the allowance of a will, is
constructive notice to the whole world, and when probate is
granted, the judgment of the court is binding upon everybody, even
against the State. The probate of the will by a court having
jurisdiction thereof is CONCLUSIVE as to its DUE EXECUTION and
VALIDITY.
D. Allowance or Disallowance of Will
RULE 76, Section 5. Proof at hearing. What sufficient in absence of
contest. — At the hearing compliance with the provisions of the last
two preceding sections must be shown before the introduction of
testimony in support of the will. All such testimony shall be taken
under oath and reduced to writing. It no person appears to contest
the allowance of the will, the court may grant allowance thereof on
the testimony of one of the subscribing witnesses only, if such
witness testify that the will was executed as is required by law.
In the case of a holographic will, it shall be necessary that at least
one witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are in the
handwriting of the testator. In the absence of any such competent Uncontested notarial will Contested notarial will
witness, and if the court deem it necessary, expert testimony may
be resorted to. Testimony of at least 1 ALL subscribing witnesses AND
subscribing witness, who testifies the notary public before whom the
RULE 76, Section 7. Proof when witnesses do not reside in that will was executed according will was acknowledged
province. — If it appears at the time fixed for the hearing that none to law
of the subscribing witnesses resides in the province, but that the
deposition of one or more of them can be taken elsewhere, the If all subscribing witnesses reside If any/all witnesses testify against
court may, on motion, direct it to be taken, and may authorize a outside the province: Deposition, execution of the will, do not
photographic copy of the will to be made and to be presented to the where witness is presented a remember atttesting thereto, or
witness on his examination, who may be asked the same questions photographic copy of the will are of doubtful credibility:
with respect to it, and to the handwriting of the testator and others, 1. Testimony of other
as would be pertinent and competent if the original will were witnesses; and
present. 2. All other evidence to show
If subscribing witnesses are that will was executed and
RULE 76, Section 8. Proof when witnesses dead or insane or do not dead, insane, or all residing attested in manner required
reside in the Philippines. — If the appears at the time fixed for the outside the PH: by law.
hearing that the subscribing witnesses are dead or insane, or that 1. Testimony of other
none of them resides in the Philippines, the court may admit the witnesses to prove sanity of
testimony of other witnesses to prove the sanity of the testator, and testator
the due execution of the will; and as evidence of the execution of 2. Proof of handwriting of
the will, it may admit proof of the handwriting of the testator and of testator
the subscribing witnesses, or of any of them. 3. Proof of handwriting of
subscribing witnesses
RULE 76, Section 11. Subscribing witnesses produced or
accounted for where will contested. — If the will is contested, all the Uncontested holographic will Contested holographic will
subscribing witnesses, and the notary in the case of wills executed (probate after decedent’s death) (probate after decedent’s death)
under the Civil Code of the Philippines, if present in the Philippines
and not insane, must be produced and examined, and the death,
absence, or insanity of any of them must be satisfactorily shown to At least 1 witness who knows the At least 3 witnesses who know
the court. If all or some of such witnesses are present in the handwriting and signature of the handwriting of testator
Philippines but outside the province where the will has been filed, testator
their deposition must be taken. If any or all of them testify against Expert testimony, if the court Absent above, and if the court
the due execution of the will, or do not remember having attested sees fit (witness not precondition deems it necessary, testimony
to it, or are otherwise of doubtful credibility, the will may for expert) of an expert witness
nevertheless, be allowed if the court is satisfied from the testimony
of other witnesses and from all the evidence presented that the will Uncontested holographic will Contested holographic will
was executed and attested in the manner required by law. (probate during decedent’s (probate during decedent’s
If a holdgraphic will is contested, the same shall be allowed if at lifetime) lifetime)
least three (3) witnesses who know the handwriting of the testator
explicitly declare that the will and the signature are in the Burden of disproving
handwriting of the testator; in the absence of any competent Affirmation that the holographic genuineness and due execution
witnesses, and if the court deem it necessary, expert testimony may will and the signature thereon is on contestant
be resorted to. are in his own handwriting
Testator may present additional
proof as necessary to rebut
RULE 76, Section 12. Proof where testator petitions for allowance contestant’s evidence
of holographic will. — Where the testator himself petitions for the
probate of his holographic will and no contest is filed, the fact that
the affirms that the holographic will and the signature are in his
own handwriting, shall be sufficient evidence of the genuineness RULE 76, Section 6. Proof of lost or destroyed will. Certificate
and due execution thereof. If the holographic will is contested, the thereupon. — No will shall be proved as a lost or destroyed will
burden of disproving the genuineness and due execution thereof unless the execution and validity of the same be established, and
shall be on the contestant. The testator to rebut the evidence for the will is proved to have been in existence at the time of the death
the contestant. of the testator, or is shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge, nor
unless its provisions are clearly and distinctly proved by at least two
(2) credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge, under
the seal of the court, and the certificate must be filed and recorded
as other wills are filed and recorded.

12
Summary of Rules on proving lost/destroyed notarial wills
Applicability of Sec. 6 Notarial wills only
Will was duly executed by testator
Will was in existence when testator died,
Facts to be proved in or it was fraudulenty or accidentally
order to allow destroyed during the testator’s lifetime
lost/destroyed will without his knowledge
Provisions of will, to be clearly
established by at least two credible
witnesses
Rule on proving lost/destroyed holographic wills
General rule If destroyed, a holographic will cannot be
probated
Exception If a photostatic copy exists
1. Contents of petition for allowance of will
RULE 76, Section 2. Contents of petition. — A petition for the
allowance of a will must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name of the
person having custody of it.
But no defect in the petition shall render void the allowance of the
will, or the issuance of letters testamentary or of administration
with the will annexed.
Contents
(1) Jurisdictional facts
(a) Death of the decedent
(b) Residence at the time of death in the province
where the probate court is sitting Or if he is an
inhabitant of a foreign country, his leaving his
estate in such province
(2) Names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent
(3) Probable value and character of the property of the estate
(4) Name of the person for whom letters are prayed
(5) If the will has not been delivered to the court, the name of the
person having custody of it. (Sec. 2, Rule 76)
Defect in petition
Defect in petition will not void the allowance of the will, or the
issuance of letters testamentary or of administration with the will
annexed. (Sec. 2, Rule 76)
2. Grounds for disallowing a will
RULE 76, Section 9. Grounds for disallowing will. — The will shall be
disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to
make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or
threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some other person
for his benefit;
13
(e) If the signature of the testator was procured by fraud or trick,
and he did not intend that the instrument should be his will at the
time of fixing his signature thereto.
Note: The grounds for disallowance of will are exclusive.
ART. 809, CIVIL CODE. In the absence of bad faith, forgery, or fraud,
or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is proved that the will
was in fact executed and attested in substantial compliance with
all the requirements of Article 805.
Substantial compliance rule
Under Art. 809, CC, if defects and imperfections can be supplied by
an examination of the will itself, and it is proved that the will was
in fact executed and attested in substantial compliace with Art.
805, and there was no bad faith, forgery, fraud, or undue or
improper pressure and influence, then the will shall not be
invalidated.
RULE 76, Section 10. Contestant to file grounds of contest. —
Anyone appearing to contest the will must state in writing his
grounds for opposing its allowance, and serve a copy thereof on the
petitioner and other parties interested in the estate.
3. Reprobate
RULE 77, Section 1. Will proved outside Philippines may be allowed
here. — Wills proved and allowed in a foreign country, according to
the laws of such country, may be allowed, filed, and recorded by the
proper Court of First Instance in the Philippines. (now RTC)
Probate of foreigner’s will executed abroad vs. Reprobate
Probate of foreigner’s Reprobate
will executed abroad
Governing rules Same as rules on Specially governed by
ordinary probate Rule 77
Will already probated &
A will executed abroad is allowed in a foreign
presented for the first country is acknowledged
Definition time before a competent as binding by a PH court
court in the PH (presupposes prior
probate)
It is mandatory that a will probated in a foreign country be
reprobated in the PH.
RULE 77, Section 2. Notice of hearing for allowance. — When a copy
of such will and of the order or decree of the allowance thereof,
both duly authenticated, are filed with a petition for allowance in
the Philippines, by the executor or other person interested, in the
court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an
original will presented for allowance.
Requisites before a will proved abroad would be allowed in the
Philippines
(1) Authenticated Copy of the will
(2) Order or decree of the allowance in foreign country
(3) Filed with a petition for allowance in the Philippines by
executor or other person interested
(4) Court having jurisdiction shall fix a time and place for the
hearing
(5) Cause notice thereof to be given as in case of an original will
presented for allowance. (Sec. 2, Rule 77)
Doctrine of processual presumption
In the absence of proof of the foreign law, it is presumed
that it is the same as that in the PH.
RULE 77, Section 3. When will allowed, and effect thereof. — If it
appears at the hearing that the will should be allowed in the
Philippines, the shall so allow it, and a certificate of its allowance,
signed by the judge, and attested by the seal of the court, to which
shall be attached a copy of the will, shall be filed and recorded by
the clerk, and the will shall have the same effect as if originally
proves and allowed in such court.
RULE 77, Section 4. Estate, how administered. — When a will is thus
allowed, the court shall grant letters testamentary, or letters of
administration with the will annexed, and such letters testamentary
or of administration, shall extend to all the estate of the testator in
the Philippines. Such estate, after the payment of just debts and
expenses of administration, shall be disposed of according to such
will, so far as such will may operate upon it; and the residue, if any
shall be disposed of as is provided by law in cases of estates in the
Philippines belonging to persons who are inhabitants of another
state or country.
4. Effects of Probate
Will conclusive as to extrinsic validity (DTF)
If allowed, the will is conclusive as to the following:
(1) Due execution
(2) Testator’s capacity
(3) Compliance with formal requirements
RULE 76, Section 13. Certificate of allowance attached to proved
will. To be recorded in the Office of Register of Deeds. — If the
court is satisfied, upon proof taken and filed, that the will was duly
executed, and that the testator at the time of its execution was of
sound and disposing mind, and not acting under duress, menace,
and undue influence, or fraud, a certificate of its allowance, signed
by the judge, and attested by the seal of the court shall be attached
to the will and the will and certificate filed and recorded by the clerk.
Attested copies of the will devising real estate and of certificate of
allowance thereof, shall be recorded in the register of deeds of the
province in which the lands lie.
Effect when will is allowed
(1) Order of probate is conclusive as to due execution of the will
(2) Order of probate is final and appealable
(3) Letters testamentary or of administration with a will annexed
shall be issued to executor or administrator
(4) Settlement proceedings begin
Effect of will allowed under Rule 77 (reprobate)
(1) Will treated as if originally proved and allowed in PH courts
(2) Letters testamentary or of administration with a will annexed
shall extend to all estates in the PH
(3) After payment of just debts and expenses of administration,
residue of the estate shall be disposed of as provided by law
GUEVARA v. GUEVARA (1956)
SUMMARY: Rosario Guevara commenced special proceedings in
the Court of First Instance of Pangasinan for the probate of the will
of his father Victorino Guevara. She alleged that the purpose of the
probate was solely to have her acknowledged as the natural child
of the deceased. This was opposed by Ernesto by filing a MTD
arguing that the will was already revoked when the testator
alienated intervivos the land subject of the will (the father sold the
land to Ernesto) and the action has already prescribed. Lower court
granted the MTD and dismissed the petition. CA reversed the LC
and reinstated the petition to hear and decide whether the will
14
should be allowed to probate. SC affirmed the CA and held that
petition for probate is not barred by prescription.
DOCTRINE: Even if the decedent left no debts and nobody raises
any question as to the authenticity and due execution of the will,
none of the heirs may sue for the partition of the estate in
accordance with a will without first securing its allowance or
probate by the court, first, because the law expressly provides that
" no will shall pass either real or personal estate unless it is proved
and allowed in the proper court"; and, second, because the probate
of a will, which is a proceeding in rem, cannot be dispensed with
and substituted by any other proceeding, judicial or extrajudicial.
SUMILANG v. RAMAGOSA (1967)
SUMMARY: Mariano Sumilang filed a petition for the probate of the
will of Hilarion Ramagosa, as the former was the instituted heir
(relationship of Sumilang with the testator was not stated in the
case). Petition for probate was opposed by two set of oppositors,
the first set being the respondents in this case and the second set
are unnamed people; both sets are armed only with bare assertions
but without proof of relationship with the testator. After adducing
evidence and after resting his case, the oppositors, instead of
adducing evidence in their behalf, instead filed an MTD alleging
lack of jurisdiction because the properties to be distributed in the
‘will’ were already sold by the testator himself to Sumilang and
Sumilang’s brother (this act being tantamount to an implied
revocation—also necessitating the probate court to look into the
validity of the dispositions therein). The CFI ruled in favor of
Sumilang by denying the MTD of the oppositors and by striking out
the opposition and other pleadings of the oppositors. The SC
upheld the ruling of the CFI. 1. Probate court only looks into the
extrinsic validity of the will. 2. Revocation of a disposition won’t
affect the entire will. 3. Only parties who have interest in the estate
may oppose the will.
DOCTRINE: In probate of a will, the court’s area of inquiry is limited
only to the extrinsic validity thereof. The testator's testamentary
capacity and the compliance with the formal requisites or
solemnities prescribed by law are the only questions presented for
the resolution of the court. Any inquiry into the intrinsic validity or
efficacy of the provisions of the will or the legality of any devise or
legacy is premature.
SUNTAY v. SUNTAY (1954)
SUMMARY: Jose Suntay contracted 2 marriages died leaving 2
wills. Respondent was the administrator for the intestate
proceedings filed by the heirs of the 1st marriage. The widow (2nd
marriage) filed for the probate of the 1929 will executed in the
Philippines in the intestate proceedings. While proceedings were on
going, WWII happened. After the liberation, petitioner (son by the
2nd marriage) filed in the intestate proceedings the probate of
either the 1929 will executed in PH or 1931 will executed in China.
The Supreme Court held that no will is to be probated. To allow the
probate of the Amoy Will, the following must be proved 1. fact that
the municipal district court of Amoy is a probate court; 2. the law of
China on procedure in the probate or allowance of wills; and 3. the
legal requirements for the execution of a valid will in China in 1931
should also be established by competent evidence. None of these
were proven so the Amoy will was not probated.
IN RE: PALAGANAS (2011)
SUMMARY: Respondent, brother of the testatrix, filed a petition for
the probate of Ruperta Palaganas’ will and for appointment as
special administrator of her estate. This was opposed by
petitioners, claiming that since Ruperta was a foreigner and her will
was executed in California, the will should have first been probated
and allowed in the country where it was executed before it may be
probated here. SC held that our laws do not prohibit the probate of
wills executed by foreigners abroad although it had not yet been
probated in the countries of their execution. Foreign wills can be
given legal effects in our jurisdiction as long as the petition for
allowance of wills contains the requisites.
 proceedings, the court’s area of inquiry is limited to an examination
ALTO-YAP v. YAP (1958) and resolution of the will’s extrinsic validity. The rule is not absolute.
SUMMARY: Holographic will not presented, just witnesses. Probate When practical considerations demand that the intrinsic validity of
denied. The execution and the contents of a lost or destroyed the will be passed upon, even before it is probated, the court should
holographic will may not be proved by the bare testimony of meet the issue head on. Here, a devise given by a married man to
witnesses who have seen and/or read such will. When the will itself his concubine is declared void even if the will was not yet probated.
is not submitted, these means of opposition, and of assessing the
evidence are not available. And then the only guaranty of
authenticity — the testator's handwriting — has disappeared. The E. Letters Testamentary and of Administration
difference lies in the nature of the wills. In the first, the only See annex C for flowchart on judicial settlement of estate
guarantee of authenticity is the handwriting itself; in the second,
the testimony of the subscribing or instrumental witnesses (and of
the notary, now). The loss of the holographic will entails the loss of 1. When and to whom letters of administration
the only medium of proof; if the ordinary will is lost, the subscribing granted
witnesses are available to authenticate.
RULE 78
KIAO ENG v. LEE (2010)
Section 1. Who are incompetent to serve as executors or
SUMMARY: Respondent Nixon lee filed a petition for mandamus
administrators. — No person in competent to serve as executor or
with the RTC against his mother, Uy Kiao Eng. The petition was to
administrator who:
compel Kiao Eng to produce the holographic will of Lee’s father
(a) Is a minor;
(which was allegedly in her possession) so that the probate
(b) Is not a resident of the Philippines; and
proceedings could be instituted. Kiao Eng filed a demurrer. RTC
(c) Is in the opinion of the court unfit to execute the duties of the
initially denied the demurrer, but later granted it. Lee appealed to
trust by reason of drunkenness, improvidence, or want of
the CA; it held in favor of Lee. Kiao Eng appealed to the SC. It held
understanding or integrity, or by reason of conviction of an offense
in favor of Kiao Eng. SC held that mandamus is not the proper
involving moral turpitude.
remedy in this case, since there is still a plain, speedy, and
Section 2. Executor of executor not to administer estate. — The
adequate remedy in the ordinary course of law (thus mandamus
executor of an executor shall not, as such, administer the estate of
cannot be invoked). These remedies are embodied in Rule 76, Sec.
the first testator.
1 of the RoC (The RoC does not prevent him from instituting probate
proceedings for the allowance of the will whether the same is in
Section 3. Married women may serve. — A married woman may
possession or not) and Rule 75, Sec. 2 to 5 (remedies for the
serve as executrix or administratrix, and the marriage of a single
production of the will).
woman shall not affect her authority so to serve under a previous
appointment.
GALLANOSA v. ARCANGEL (1978)
SUMMARY: Florentino’s will was presented for probate by his
Section 4. Letters testamentary issued when will allowed. — When
testamentary heirs. His legal heirs opposed the same without
a will has been proved and allowed, the court shall issue letters
introducing evidence supporting their claim. The decree of probate
testamentary thereon to the person named as executor therein, if
was issued in 1938, and the legal heirs did not appeal from the
he is competent, accepts the trust, and gives bond as required by
said decision. 28 years later, the same heirs filed a case for
these rules.
annulment of the will and recovery of the parcels of land, alleging
that the testamentary heirs caused the execution of the will through
Section 5. Where some coexecutors disqualified others may act. —
fraud and deceit. SC ruled in favor of the testamentary heirs and
When all of the executors named in a will can not act because of
dismissed the present action. The decree of probate is conclusive
incompetency, refusal to accept the trust, or failure to give bond,
as to the due execution or formal validity of the will. This means: 1.
on the part of one or more of them, letters testamentary may issue
That the testator was of sound and disposing mind at the time when
to such of them as are competent, accept and give bond, and they
he executed the will and was not acting under duress, menace,
may perform the duties and discharge the trust required by the will.
fraud, or undue influence; 2. That the will was signed by him in the
presence of the required number of witnesses, and 3. That the will
Section 6. When and to whom letters of administration granted. —
is genuine and is not a forgery. Accordingly, these facts cannot
If no executor is named in the will, or the executor or executors are
again be questioned in a subsequent proceeding, not even in a
incompetent, refuse the trust, or fail to give bond, or a person dies
criminal action for forgery. After the finality of the allowance of a
intestate, administration shall be granted:
will, the issue of voluntariness of execution can no longer be raised.
(a) To the surviving husband or wife, as the case may be, or next
of kin, or both, in the discretion of the court, or to such person
NEPOMUCENO v. CA (1985)
as such surviving husband or wife, or next of kin, requests to
SUMMARY: Jugo died in July 1974. In his duly-executed Will, Jugo
have appointed, if competent and willing to serve;
named and appointed Sofia Nepomuceno as sole and only executor
(b) If such surviving husband or wife, as the case may be, or next
of his estate. In the Will, it was stated that Jugo was legally married
of kin, or the person selected by them, be incompetent or
to Rufina Gomez with whom he had 2 legitimate children, but since
unwilling, or if the husband or widow, or next of kin, neglects
1952, he had been estranged from her and living with Sofia as
for thirty (30) days after the death of the person to apply for
husband and wife, and that in Dec. 1952, Jugo and Sofia were
administration or to request that administration be granted to
married. Jugo devised to his forced heirs Rufina and his children his
some other person, it may be granted to one or more of the
entire estate, and the free portion thereof to Sofia. Sofia filed a
principal creditors, if may be granted to one or more of the
petition for the probate of the last Will and Testament and asked
principal creditors, if competent and willing to serve;
for the issuance to her of letters testamentary before the Rizal CFI.
(c) If there is no such creditor competent and willing to serve, it
CFI: denied probate of the Will—as Jugo admitted in his Will to
may be granted to such other person as the court may select.
cohabiting with Sofia, on the face of the Will, the invalidity of its
intrinsic provisions is evident. CA: declared Will valid except that the
devise in favor of Sofia is null and void pursuant to CC Arts. 739
and 1028. SC affirmed CA decision. Doctrine: In probate
15
Persons who can administer the estate How appointed
Executor Person named by the testator in his will The person to be appointed executor or administrator must appear
Appointed by the Court to administer and before the court to answer the court’s questions. The court should
settle the intestate estate where: be in a position to ascertain the fitness of the appointee.
Regular or general 1. Testator did not appoint an executor; LIM v. DIAZ-MILLAREZ (1966)
administrator 2. Executor refused appointment; SUMMARY: The nephew of the deceased filed a petition for his
3. Will was disallowed; or appointment as judicial administrator of the estate. The widow of
4. Decedent did not leave a will the deceased opposed because of a pending civil case between
them involving the same property. The TC dismissed the nephew’s
Special administrator Temporarily appointed by the Court in the petition. Meanwhile, deciding on the civil case, the CA held the
event of delay in appointing the widow was entitled to ½ of the estate, due to her from the nephew.
permanent executor or administrator In view of these declared liabilities, the SC affirmed the TC is
dismissing the nephew’s petition. It cannot be denied that the
Executor vs. administrator nephew has some interest adverse to that of widow. Shown to have
Who may serve Any competent person some liabilities to the widow and the estate as a whole, the nephew
cannot compatibly perform the duties of an administrator. In this
Person appointed by jurisdiction, one is considered to be unsuitable for appointment as
the court in case: administrator when he has adverse interest of some kind or
1. Testator did hostility to those immediately interested in the estate. The
Person named as not appoint an determination of a person’s suitability for the office of judicial
Definition executor in the will executor administrator rests, to a great extent, in the sound judgment of the
2. Executor court exercising the power of appointment and said judgment is not
refused to be interfered with on appeal unless the said court is clearly in
appointment error.
3. Will was disallowed BALUYUT v. PANO (1976)
4. Decedent did not SUMMARY: The nephew of Sotero Baluyut filed verified petition for
leave a will letters of administration over the estate of his uncle. He alleged
that the surviving spouse was mentally incapacitated of acting as
Issued with Letters testamentary Letters of administratrix. This was opposed by the widow herself. Eventually
administration the probate court, convinced of the widow's capacity and her
Must present will to the "sufficient understanding" as gleaned from the manner she
Duty to present court according to No such duty answered the questions propounded to her while on the witness
will periods provided in Rule stand appointed the widow as regular administratrix. SC ordered
75, Sec. 3 the cancellation of the letters of administration granted to the
Testator may provide Required to file a bond, widow and directed the probated court to conduct further
that executor serve unless exempted by law proceedings to fully ascertain her fitness to be appointed as such,
without bond, though giving persons questioning her capacity adequate opportunity to be
Bond court may direct him to heard and present evidence. The lower court departed from the
give a bond conditioned usual course of probate procedure as prescribed by Sec.6[a]. Rule
only to pay debts 78 in summarily appointing Mrs. Baluyut as administratrix on the
assumption that Alfredo was not an interested party without giving
May be provided for by Compensation persons questioning her capacity an adequate opportunity to be
the testator in the will; governed by Rule 85, heard and present evidence.
Compensation otherwise, Rule 85, Sec. Sec. 7
7 shall apply 2. Order of preference

Persons who cannot serve as executor/administrator
(1) Minor
(2) Non-resident of the PH
(3) One who, in the court’s opinion, is unfit to exercise the duties
of the trust by reason of:
a. Drunkenness—Excessive, inveterate, and continued
drunkenness, to such extent that it is unsafe to
entrust the care of property and the transaction of
business to him
b. Improvidence—Want of care and foresign in the
management of property that would likely render the
estate unsafe and liable to loss or diminution of
value
c. Want of understanding—Lack of intelligence that
would or might subject one to sinister influence or
coercion, against the estate’s general interest
d. Want of integrity—Certain & grave lack of probity,
honesty, & uprightness in business relations
e. Conviction for offense involvng moral turpitude
(4) Executor of an executor, as to the first testator’s estate
(5) Person indebted to the decedent’s estate
16
Order of preference in the grant of administration
(1) Surviving spouse or next of kin, or both, or to such person as
the surviving spouse, or next of kin requests to have
appointed, if competent and willing to serve.
(2) If those in (1) be incompetent or unwilling, or if the husband
or widow, or next of kin, neglects for 30 days after the death
of the person to apply for administration or to request that
administration be granted to some other person, it may be
granted to one or more of the principal creditors, if
competent and willing to serve.
(3) If there is no (2), it may be granted to such other person as
the court may select. (Sec. 6, Rule 78)
Next of kin are those entitled by law to receive the decedent’s
properties. [Gonzalez v. Aguinaldo, et al., (1990)]
Reason for order of preference
Those who would reap the benefit of a wise, speedy and
economical administration of the estate, or, on the other hand,
suffer the consequences of waste, improvidence or
mismanagement, have the highest interest and most influential
motive to administer the estate correctly. [Gonzalez v. Aguinaldo,
et al., (1990)]
Mere failure to apply for letters of administration does not remove
preference. [1 ALR 1247]
General Rule: The court cannot set aside order of preference
Exception:
If the person enjoying such preferential rights is
1) Unsuitable
2) Incompetent
3) Unwilling
4) Neglect to apply for letters 30 days after the death of the
decedent
Court may reject order of preference when circumstances warrant.
[Villamor v. Court of Appeals, (1988)]
The order of preference is not absolute for it depends on the
attendant facts and circumstances of each case. The selection of
an administrator lies in the sound discretion of the trial court. [In
Re Suntay, (2007)]
30-day period may be waived
Just as the order of preference is not absolute and may be
disregarded for valid cause, so may the 30-day period be likewise
waived under the permissive tone in paragraph (b) of said rule
which merely provides that said letters as an alternative, “may be
granted to one or more of the principal creditors.” (Herrera)
Co-administrators may be appointed. [Matute v. Court of Appeals
(1969)]
GABRIEL v. CA (1992)
SUMMARY: Illegitimate son Roberto was appointed as
administrator of the estate of the deceased. Petitioners, legitimate
children, opposed and argued that under Sec 6 Rule 78, the
surviving spouse should be preferred and if declared incompetent,
the next of kin (legitimate should be preferred than the illegitimate
son). Roberto argued that failure to filed within the 30 day period in
same section, he can administer the property. SC:It is true that
Section 6(b) of Rule 78 provides that the preference given to the
surviving spouse or next of kin may be disregarded by the court
where said persons neglect to apply for letters of administration for
thirty (30) days after the decedent's death. However, it is our
considered opinion that such failure is not sufficient to exclude the
widow from the administration of the estate of her husband.There
is no compelling reason to disqualify wife. Also, just as the order of
preference is not absolute and may be disregarded for valid cause
despite the mandatory tenor in the opening sentence of Rule 78 for
its observance, so may the 30-day period be likewise waived under
the permissive tone in paragraph (b) of said rule which merely
provides that said letters, as an alternative, "may be granted to one
or more of the principal creditors. But appointment of Robert not
nullified, Surviving spouse is also appointed as co-administrator.
TORRES v. SICAT (1953)
SUMMARY: Jose Torres, alleging to be a creditor of the conjugal
partnership, commenced a special proceeding for the issuance of
letters of administration to settle the estate of Luis Morales.
Hermenegilda, Luis’ widow, opposed, claiming that the surviving
widow has a preferential right to be appointed administrator. The
SC held that the order of preference for the appointment of
administrators provided in Rule 79, Sec. 6 may be disregarded only
if the person enjoying such preference appears to be unsuitable for
the trust, he having an adverse interest or is hostile to those
immediately interested in the estate, to such an extent as to render
the appointment inadvisable. However in this case Hermenegilda
could not strictly be considered hostile to the creditors. The
Creditors’ claims may be filed, and considered, only after the
regular administrator has been appointed. The widow practically
17
did nothing more than to inform the alleged creditors, “Prove your
credit before I honor it.”
SILVERIO v. CA (1999)
SUMMARY: Beatriz Silverio died intestate, survived by her husband,
Ricardo and sons, Edmundo, Edgardo and Ricardo, Jr., and
daughters, Nelia and Ligaya. Edgardo filed a Petition for Letters of
Administration and Urgent Petition for Appointment of Special
Administrator. TC granted. Ricardo Sr. opposed this. SC also found
that appointment of Edgardo as proper and because the order of
preference in Sec 6, Rule 78 is based on attendant facts and
circumstances. A probate court cannot arbitrarily disregard the
preferential rights of the surviving spouse to the administration of
the estate of a deceased person; but if the person enjoying such
preferential rights is unsuitable the court may appoint another
person.
3. Opposition to issuance of letters of
administration
RULE 79
Section 1. Opposition to issuance of letters testamentary.
Simultaneous petition for administration. — Any person interested
in a will may state in writing the grounds why letters testamentary
should not issue to the persons named therein as executors, or any
of them, and the court, after hearing upon notice, shall pass upon
the sufficiency of such grounds. A petition may, at the time, be filed
for letters of administration with the will annexed.
Section 2. Contents of petition for letters of administration. — A
petition for letters of administration must be filed by an interested
person and must show, so far as known to the petitioner:
a) The jurisdictional facts;
b) The names, ages, and residences of the heirs, and the names
and residences of the creditors, of the decedent;
c) The probable value and character of the property of the estate;
d) The name of the person for whom letters of administration are
prayed.
But no defect in the petition shall render void the issuance of letters
of administration.
Section 3. Court to set time for hearing. Notice thereof. — When a
petition for letters of administration is filed in the court having
jurisdiction, such court shall fix a time and place for hearing the
petition, and shall cause notice thereof to be given to the known
heirs and creditors of the decedent, and to any other persons
believed to have an interest in the estate, in the manner provided
in sections 3 and 4 of Rule 76.
Section 4. Opposition to petition for administration. — Any
interested person may, by filing a written opposition, contest the
petition on the ground of the incompetency of the person for whom
letters are prayed therein, or on the ground of the contestant's own
right to the administration, and may pray that letters issue to
himself, or to any competent person or person named in the
opposition.
Section 5. Hearing and order for letters to issue. — At the hearing
of the petition, it must first be shown that notice has been given as
hereinabove required, and thereafter the court shall hear the
proofs of the parties in support of their respective allegations, and
if satisfied that the decedent left no will, or that there is no
competent and willing executor, it shall order the issuance of letters
of administration to the party best entitled thereto.
Section 6. When letters of administration granted to any applicant.
— Letters of administration may be granted to any qualified
applicant, though it appears that there are other competent
persons having better right to the administration, if such persons
fail to appear when notified and claim the issuance of letters to
themselves.
Who may oppose: Any person interested in will
Meaning of interested person
One who would be benefited by the estate, such as an heir, or one
who has a claim against the estate, such as a creditor; thus
interest must be immaterial and direct, not merely indirect or
contingent. [Saguinsin v. Lindayag]]
Grounds
(1) Incompetency of the person/s named in the will as
executor/s, or
(2) Contestant’s right to the administration (Sec. 4, Rule 79)
Form required: State in writing the grounds why letter should not
issue; the court shall then hear and pass upon sufficiency of such
grounds. (Sec. 1, Rule 79)
Contents
1) Jurisdictional facts
2) Name, age and residence of heirs and the name and age of
creditors
3) Probable value of the estate
4) Name of person to whom letter is prayed (Sec. 2, Rule 79)
Jurisdictional facts
(1) Death of the testator
(2) His/her residence at the time of death in the province where
the probate court is sitting or,
(3) If an inhabitant of a foreign country, his/her having left his
estate in such province [Diez v. Serra, (1927)]
Publication and Notice
Publication of notice for 3 weeks successively and notice to heirs,
creditors and interested persons, if place of residence is known,
are jurisdictional. (Sec. 3, Rule 79 and Secs. 3 & 4, Rule 76)
Simultaneous filing of Opposition and Petition: A petition may, at
the same time, be filed for letters of administration to himself, or
to any competent person or person named in the opposition. (Sec.
4, Rule 79)
Lack of interest in the proceedings is equal to lack of legal
capacity to institute proceedings. (Herrera)
Appointment of regular administrator is final and thus, appealable.
RP v. MARCOS (2009)
SUMMARY: RTC issued an order granting letters testamentary in
solidum to Marcos II and Imelda as named executors in the last will
and testament of Marcos. Republic filed a petition for review on
certiorari under Rule 45 with the SC questioning the RTC Orders
mainly averring that the Marcoses should be disqualified. The SC
referred the case to the CA since the latter had concurrent
jurisdiction with SC on such petitions and Republic did not cite any
important reasons for it to be taken cognizance of by the SC in the
first instance. CA upon referral however, dismissed the petition for
being the wrong mode of appeal. Republic questioned this order of
dismissal before the SC insisting, among others, that the SC
referred it to the CA for resolution. SC held that CA was correct in
dismissing the petition for invoking the wrong mode of appeal. The
subject matter of the petition was not among those covered by the
mode of appeal invoked. The proper appeal must be under Rule
109 (Appeals in Special Proceedings) Sec. 1(a) involving appeal for
allowance or disallowance of wills which must be done with the CFI.
Based on the procedural lapse alone, the petition must fail. Is such
is set aside, the petition still fails for lack of merit as the Marcoses
were not shown to be “incompetent” in order to be disqualified. No
18
proof of such was presented by the Republic. CA dismissal
affirmed, RTC ordered to issue letters testamentary to Marcoses.
IN RE: DURAN (1967)
Summary: Pio Duran died intestate. His brother, Cipriano, executed
a public instrument assigning and renouncing his hereditary rights
in favor of Josefina Duran, for a consideration. Later, he filed a
petition for intestate proceedings and asked that he be
administrator. Josefina filed an MTD. Ground: Cipriano not a person
with interest because of the deed of assignment. In the alternative,
she asked to be administratrix. The Court upheld the validity of the
deed of assignment, holding that should it be attacked, it must be
done in a separate action. In the meanwhile, the assigning heir
cannot initiate a settlement proceedings, for until the deed of
assignment is annulled or rescinded, it is deemed valid and
effective against him, so that he is left without that "interest" in the
estate required to petition for settlement proceedings. Still,
Josefina was not named as administratrix because she only asked
this in the alternative.
4. Powers and duties of executors and administrators;
restrictions of powers
Scope of administration
Administration generally extends only to the assets of a decedent
found within the state or country where it was granted. An
administrator appointed in one state or country has no power over
the property in another state or country
RULE 81
Section 1. Bond to be given issuance of letters. Amount.
Conditions. — Before an executor or administrator enters upon the
execution of his trust, and letters testamentary or administration
issue, he shall give a bond, in such sum as the court directs,
conditioned as follows:
(a) To make and return to the court, within three (3) months, a
true and complete inventory of all goods, chattels, rights,
credits, and estate of the deceased which shall come to his
possession or knowledge or to the possession of any other
person for him;
(b) To administer according to these rules, and, if an executor,
according to the will of the testator, all goods, chattels, rights,
credits, and estate which shall at any time come to his
possession or to the possession of any other person for him,
and from the proceeds to pay and discharge all debts,
legacies, and charges on the same, or such dividends thereon
as shall be decreed by the court;
(c) To render a true and just account of his administration to the
court within one (1) years, and at any other time when required
by the court;
(d) To perform all orders of the court by him to be performed.
Section 2. Bond of executor where directed in will. When further
bond required. — If the testator in his will directs that the executors
serve without bond, or with only his individual bond, he may be
allowed by the court to give bond in such sum and with such surety
as the court approves conditioned only to pay the debts of the
testator; but the court may require of the executor a further bond in
case of a change in his circumstance, or for other sufficient case,
Section 3. Bonds of joint executors and administrators. — When two
or more persons are appointed executors or administrators the
court may take a separate bond from each, or a joint bond from all.
Summary of rules for bonds of executors/administrators
1. Make and return to the court within 3
months a true and complete inventory of
the deceased’s property that came to his
knowledge and possession or to the
possession of any other person for him
Conditions of bond 2. Administer the estate and pay and
discharge all debts, legacies, and charges,
including dividends declared by the court
from the proceeds
3. Render a true and just account within 1
year and when required by the court
4. Perform all orders of the court
Continuing liability, which persists as long as
Effectivity of bond the probate court retains jurisdiction of the
estate; does not expire until the
administration is closed
Executor may serve without paying a bond if
Exemption by testator so directs in his will, but court may
testator still direct him to file a bond, conditioned only
to pay testator’s debts
Bond of joint
executors and Bond may be either joint or separate
administrators
RULE 83
Inventory and Appraisal. Provision for Support of Family
Section 1. Inventory and appraisal to be returned within three
months. — Within three (3) months after his appointment every
executor or administrator shall return to the court a true inventory
and appraisal of all real and personal estate of the deceased which
has come into his possession or knowledge. In the appraisement of
such estate, the court may order one or more of the inheritance tax
appraisers to give his or their assistance.
Section 2. Certain article not to be inventoried. — The wearing
apparel of the surviving husband or wife and minor children., the
marriage bed and bedding, and such provisions and other articles
as will necessarily be consumed in the subsistence of the family of
the deceased, under the direction of the court, shall not be
considered as assets, nor administered as such, and shall not be
included in the inventory.
Section 3. Allowance to widow and family. — The widow and minor
or incapacitated children of a deceased person, during the
settlement of the estate, shall receive therefrom, under the
direction of the court, such allowance as are provided by law.
RULE 84
General Powers and Duties of Executors and Administrators
Section 1. Executor or administrator to have access to partnership
books and property. How right enforced. — The executor or
administrator of the estate of a deceased partner shall at all times
have access to, and may examine and take copies of, books and
papers relating to the partnership business, and make examine
and make invoices of the property belonging to such partnership;
and the surviving partner or partners, on request, shall exhibit to
him all such books, papers, and property in their hands or control.
On the written application of such executor or administrator, the
court having jurisdiction of the estate may order any such surviving
partner or partners to freely permit the exercise of the rights, and
to exhibit the books, papers, and property, as in this section
provided, and may punish any partner failing to do so for contempt.
19
Section 2. Executor or administrator to keep buildings in repair. —
An executor or administrator shall maintain in tenable repair the
houses and other structures and fences belonging to the estate,
and deliver the same in such repair to the heirs or devisees when
directed so to do by the court.
Section 3. Executor or administrator to retain whole estate to pay
debts, and to administer estate not willed. — An executor or
administrator shall have the right to the possession and
management of the real as well as the personal estate of the
deceased so long as it is necessary for the payment of the debts
and the expenses of administration.
RULE 85
Accountability and Compensation of Executors and Administrators
Section 1. Executor or administrator chargeable with all estate and
income. — Except as otherwise expressly provided in the following
sections, every executor or administrator is chargeable in his
account with the whole of the estate of the deceased which has
come into his possession, at the value of the appraisement
contained in the inventory; with all the interest, profit, and income
of such estate; and with the proceeds of so much of the estate as
is sold by him, at the price at which it was sold.
Accountabilities of the executor/administrator
Accountable for:
1. Whole estate of the deceased at value
of appraisement contained in inventory
2. All interest, profit, and income of such
General Rule
estate
3. Proceeds of so much of the estate as is
sold by him, at the price at which it was
sold
Not accountable for properties that
Exception
never came to his possession
Through untruthfulness to trust, his own
Exception to
fault, or lack of necessary action, he failed
exception
to recover part of the estate that came to
his knowledge
RULE 85, Section 2. Not to profit by increase or lose by decrease in
value. — No executor or administrator shall profit by the increase,
or suffer loss by the decrease or destruction, without his fault, of
any part of the estate. He must account for the excess when he
sells any part of the estate for more than the appraisement, and if
any is sold for the less than the appraisement, he is not responsible
for the loss, if the sale has justly made. If he settles any claim
against the estate for less than its nominal value, he is entitled to
charge in his account only the amount he actually paid on the
settlement.
Section 3. When not accountable for debts due estate. — No
executor or administrator shall be accountable for debts due the
deceased which remain uncollected without his fault.
Section 4. Accountable for income from realty used by him. — If the
executor or administrator uses or occupies any part of the real
estate himself, he shall account for it as may be agreed upon
between him and the parties interested, or adjusted by the court
with their assent; and if the parties do not agree upon the sum to
be allowed, the same may be ascertained by the court, whose
determination in this respect shall be final.
Section 5. Accountable if he neglects or delays to raise or pay
money. — When an executor or administrator neglects or
unreasonably delays to raise money, by collecting the debts or
selling the real or personal estate of the deceased, or neglects to
pay over the money he has in his hands, and the value of the estate
is thereby lessened or unnecessary cost or interest accrues, or the
persons interested suffer loss, the same shall be deemed waste
and the damage sustained may be charged and allowed against
him in his account, and he shall be liable therefor on his bond.
Accountability for damages (paid out of bond)
1. If executor/administrator:
a. Neglects/unreasonably delays to raise money by
collecting the debts or selling the real/personal
estate of the deceased
b. Neglects to pay over the money in his hands
2. Value of estate is lessened
3. Unnecessary cost or interest accrues
4. Persons interested suffered loss
RULE 85, Section 6. When allowed money paid as cost. — The
amount paid by an executor or administrator for costs awarded
against him shall be allowed in his administration account, unless
it appears that the action or proceeding in which the costs are taxed
was prosecuted or resisted without just cause, and not in good
faith.
Rule on money paid as costs
Amount paid for costs awarded against
General
him shall be allowed in his administration
rule
account
Action or proceedings in which the costs
Exception are taxed was prosecuted or resisted
without just cause, and not in good faith
Rule on necessary expenses
Right to Executor/administrator allowed the
necessary necessary expenses in the care,
expenses management, and settlement of the estate
Such expenses as are required for the
What
preservation and productivity of the estate
constitutes
and for its management for purposes of
necessary
liquidation, payment of debts, and
expenses
distribution of residue among persons
entitled thereto
RULE 85, Section 7. What expenses and fees allowed executor or
administrator. Not to charge for services as attorney.
Compensation provided by will controls unless renounced. — An
executor or administrator shall be allowed the necessary expenses
the care, management, and settlement of the estate, and for his
services, four pesos per day for the time actually and necessarily
employed, or a commission upon the value of so much of the estate
as comes into his possession and is finally disposed of by him in
the payment of debts, expenses, legacies, or distributive shares, or
by delivery to heirs or devisees, of two per centum of the first five
thousand pesos of such value, one per centum of so much of such
value as exceeds five thousand pesos and does not exceed thirty
thousand pesos, one-half per centum of so much of such value as
exceed one hundred thousand pesos. But in any special case,
where the estate is large, and the settlement has been attended
with great difficulty, and has required a high degree of capacity on
the part of the executor or administrator, a greater sum may be
allowed. If objection to the fees allowed be taken, the allowance
may be re-examined on appeal.
20
If there are two or more executors or administrators, the
compensation shall be apportioned among them by the court
according to the services actually rendered by them respectively.
When the executors or administrator is an attorney, he shall not
charge against the estate any professional fees for legal services
rendered by him.
When the deceased by will makes some other provision for the
compensation of his executor, that provision shall be a full
satisfaction for his services unless by a written instrument filed in
the court he renounces all claim to the compensation provided by
the will.
Rules on compensation
General rule onAs provided in the will
compensation
1. P4.00/a day for the time actually and
necessarily employed; or
2. Commission upon the value of so much of
the estate as comes into his possession and
is finally disposed of in the payment of debts,
expenses, legacies, or distributive shares, or
by delivery to heirs or devisees; of
a. 2% of the first P5,000
If will has no b. 1% of more than P5,000 but not more
provision than P30,000
3. A greater sum may be allowed if:
a. The estate is large;
b. The settlement has been attended with
great difficulty; and
c. The settlement has required a high
degree of capacity of the executor or
administrator.
Administrator who is a lawyer may not recover
attorney’s fees from the estate. His
compensation is fixed by the rule but such
compensation is in the nature of executor’s or
administrator’s commissions, and never as
attorney’s fees. A lawyer of an administrator or
Attorney’s fees executor may not charge the estate for his fees,
but rather he must charge his client (the executor
or the administrator).
Where the administrator is himself the counsel
for the heirs, it is the latter who must pay therefor.
1. Request administrator to make payment
2. File an action against administrator in his
personal capacity and not as administrator
Procedure for should he fail to pay; or
collection of 3. Petition in the testate or intestate proceeding
attorney’s fees asking the court, after notice to all persons
interested, to allow his claim and direct the
administrator to pay it as an expense of
administration.
RULE 85, Section 8. When executor or administrator to render
account. — Every executor or administrator shall render an account
of his administration within one (1) year from the time of receiving
letters testamentary or of administration, unless the court
otherwise directs because of extensions of time for presenting
claims against, or paying the debts of, the estate, or for disposing
of the estate; and he shall render such further accounts as the
court may require until the estate is wholly settled.

Period to render account
General rule Within 1 year from time of receiving letters
testamentary/of administration
Court gives an extension of time to:
1. Present claims against the estate
2. Pay debts of the estate
Exception 3. Dispose of the estate
Executor/administrator shall render further
accounts as the court may require, until estate
wholly settled.
RULE 85, Section 9. Examinations on oath with respect to account
— The court may examine the executor or administrator upon oath
with respect to every matter relating to any account rendered by
him, and shall so examine him as to the correctness of his account
before the same is allowed, except when no objection is made to
the allowance of the account and its correctness is satisfactorily
established by competent proof. The heirs, legatees, distributees,
and creditors of the estate shall have the same privilege as the
executor or administrator of being examined on oath on any matter
relating to an administration account.
When examination may be dispensed with
1. No objection made to the allowance of the account
2. Correctness is satisfactorily established by
competent proof
RULE 85, Section 10. Account to be settled on notice. — Before the
account of an executor or administrator is allowed, notice shall be
given to persons interested of the time and place of examining and
allowing the same; and such notice may be given personally to such
persons interested or by advertisement in a newspaper or
newspapers, or both, as the court directs.
Section 11. Surety on bond may be party to accounting. — Upon the
settlement of the account of an executor or administrator, a person
liable as surety in respect to such account may, upon application,
be admitted as party to such accounting.
Summary of powers & duties of executors/administrators
Powers
(1) Has access to and can examine and take copies of books
and papers relating to the partnership, if deceased is a partner
(2) Can examine and make invoices of property belonging to the
partnership, if deceased is a partner
(3) Has right to possess and manage real and personal property
of deceased, when necessary for:
a. Payment of debts; and
b. Expenses of administration
Duties
(1) Give a bond with the following conditions:
a. Make and return to the court within 3 months a true and
complete inventory of the deceased’s property that came
to his knowledge and possession or to the possession of
any other person for him
b. Administer the estate and pay and discharge all debts,
legacies, and charges, including dividends declared by
the court from the proceeds
c. Render a true and just account within 1 year and when
required by the court
d. Perform all orders of the court
(2) Return to the court an appraisal of all the real and personal
property of the estate, within the same 3 months given for the
inventory
21
(3) During settlement proceedings, give an allowance to:
a. Legitimate surviving spouse
b. Children of the deceased
(4) Administer and maintain properties of estate
a. Pay necessary expenses
b. Pursue debts
c. Represent estate in suits
(5) Account for excess when sale of estate property made in
excess of appraisal
(6) Render an account after 1 year and at any time so ordered by
the court
Restrictions on Power
(1) Cannot acquire by purchase property under administration,
even at public or judicial auction, either in person or through
mediation of another
(2) Cannot profit or suffer loss by increase/decrease of any part
of the estate
(3) Cannot lease the property for more than 1 year
(4) Cannot exercise right of legal redemption over a portion of the
property owned in common, if property is sold by one of the
other co-owners
(5) Cannot borrow money without authority of the court
(6) Cannot continue business of the deceased, unless authorized
by the court
Process for executor/administrator
Accept trust

Take oath

Post bond

File inventory of real and personal property of estate, within
3 months from appointment

Submit appraisal within same 3 months

Administer and maintain properties of estate
a. Pay necessary expenses
b. Pursue debts
c. Represent estate in suits

Render an account after 1 year and at any time so
ordered by the court
RUIZ v. CA (1996)
SUMMARY: Hilario executed a will naming Edmond as executor.
When Hilario died, the adopted daughter of Hilario filed for probate
of will. At first, Edmond opposed, but then withdrew his opposition.
Letters testamentary was granted to Edmond. A house and lot in
Valle Verde IV, which was bequeathed to 3 granddaughters, was
leased by Edmond to 3rd persons. The court ordered Edmond to
deposit the rentals to clerk of court. Edmond deposited partial, the
balance being used for repairs and maintenance. Edmond also
asked for release of funds for payment of real estate tax which was
partially granted. He again filed a motion for release of funds but
this was no longer granted. Edmond claims that the order of the
probate court deprived him, as executor, of his right to possess all
the properties of the testator. SC said that the right of executor to
possess properties is limited by Rule 84 section 3 to those
necessary for payment of debts and expenses of administration. It
is not absolute and it was correct for the probate court to ask for an
accounting of the expenses before allowing another release of
funds.
 HILADO v. NAVA (1939)
SUMMARY: Without prior court approval, the administratrix of the
intestate estate of Rafael Jocson leased parts of the estate’s
property to Nava. Concepcion Jocson de Hilado (widow?) filed a
motion to declare the lease contract null and void. This was granted
by the lower court. However, the Supreme Court reversed and held
that the contact in question was a mere act of administration which
could validly be entered into by the administratrix within her powers
of administration, even without the lower court’s previous authority.
Also, the lower court had no power to annul or invalidate the
contract in the intestate proceedings wherein it had no jurisdiction
over the person of the lessee. A separate ordinary action is
necessary to that effect.
LEDESMA v. ENRIQUEZ (1949)
SUMMARY: Estrella is 1 of Marcelo (dead) Ledesma’s heirs. Jose
filed a case praying that Estrella render accounting of her
administration. Judge Enriquez cited Estrella to appear before the
court and show cause why she should not be punished for
contempt for abandonment of and not having made accounting of
the administration. Estrella first asked via telegram for a 30-day
extension, which Enriquez initially granted. However, she was not
able to show up and again asked for another extension. Ledesma
did not buy her excuse and ordered for her arrest. SC held that
Judge Enriquez is justified in ordering Ledesma’s arrest. Said order
was issued not to harass the but merely to enforce the order of the
court requiring her appearance in court to show cause why she
should not be punished for contempt of court for her failure to
comply with her duties as administratrix in the testate proceedings.
IN RE: BUTLER (1951)
SUMMARY: Butler, former PH resident, died in Brooklyn and left a
will which was probated in the Surrogate’s Court of NY County. The
will contained a residuary clause in favor of De Leon. The NY
Surrogate’s Court appointed Ross as trustee. Ross, with De Leon
signing the application with him, bought an annuity from
Manufacturers Life Insurance Co. at its head office in Toronto,
Canada, with stipulation for monthly payment to De Leon during her
lifetime. De Leon began receiving the monthly allowances from
Manufacturers through the latter’s Manila Office. To get hold at
once of the entire amount invested in the annuity, De Leon
presented Butler’s will for probate in the CFI of Manila and secured
the appointment of Ghezzi as administratrix. Ghezzi then filed a
motion praying for the citation of the manager of the Manila Branch
of Manufacturers to appear and render a complete accounting of
certain funds that the Manila branch allegedly had in its
possession, claimed to belong to the estate. CFI: Denied the
motion; funds came into Manufacturers’ possession regularly and
in due course; no ground to require the company to render an
accounting. SC upholds CFI. Administration extends only to the
assets of a decedent found within the state or country where it was
granted, so that an administrator appointed in one state or country
has no power over property in another state or country. In CAB, the
funds in question are outside the jurisdiction of the probate court
of Manila. Having been invested in an annuity in Canada under a
contract executed in that country, Canada is the situs of the money.
Manufacturers (Manila) is only a branch or agency of the company
which holds the funds in its possession. Even if the money were in
the hands of the Manila Branch, it no longer forms part of Butler's
estate and is beyond the control of the court. It has passed
completely into the hands of Manufacturers by virtue of a contract
duly authorized and validly executed. Neither the domiciliary or
ancillary executor of Butler's will, nor the trustee, nor the annuitant
has disposition of any of these funds beyond the amounts and
except upon the conditions agreed upon in the contract for annuity.
BOLISAY v. ALCID (1978)
SUMMARY: Subject property is registered in the names of Sps.
Bolisay, on the basis of a sale of the same between the Sps. Bolisay
22
and Luciana Abadilla. The property is presently involved in two civil
cases (action for annulment of deed of sale and action for
partition), wherein its ownership in issue. In the settlement of the
estate of Luciana, the administratrix submitted an inventory of the
properties of the deceased, including therein the subject property.
The probate court, through Judge Alcid, granted the administratrix’s
motion to collect rentals therefrom. Judge Alcid denied Sps.
Bolisay’s MR and motion to exclude the subject property from the
inventory, reasoning out that “it is included in the inventory of said
estate and there is an ordinary action in the regular court over the
ownership thereof and the estate is one of the parties therein.”
Court reversed, and held that the subject property should be
excluded from the inventory. The mere inclusion in the inventory
submitted by the administratrix of the estate of a deceased person
of a given property does not of itself deprive the probate court of
authority to inquire into the propriety of such inclusion in case an
heir or a third party claims adverse title thereto. The probate court
has the power to determine what properties, rights, and credits of
the deceased should be included in or excluded from the inventory.
This power is in compliance with the court’s inherent duty to see
that the inventory submitted by the administrator contains all the
properties, rights and credits which the law requires the
administrator to set out in his inventory.
DOCTRINE: It is the duty of every administrator, whether special or
regular, to return to the court within three months after his
appointment a true inventory of the real estate and all the goods,
chattels, rights, and credits of the deceased which come into his
possession or knowledge, unless he is residuary legatee and has
given the prescribed bond.
JOSON v. JOSON (1961)
SUMMARY: Tomas died in 1945 leaving behind heirs and
properties. His will was admitted to probate and his son Felicisimo
was appointed administrator. Felicisimo filed several accounts of
his administration that were never approved by the court. Eduardo,
one of the heirs, filed an opposition to all of these accounts alleging
that he diminished their shares and padded the expenses. Eduardo
asked the court to order Felicisimo to file a bond. Meanwhile, the
heirs entered into an EXTRAJUDICIAL SETTLEMENT and PARTITION.
Felicisimo submitted an amended account as per court order, but
before this could be heard and approved, he filed a motion to
declare the proceedings closed and terminated and be relieved of
his duties. SC held that CFI erred in terminating the proceedings for
in doing so, it disregarded the express provisions of our rules on
settlement of accounts of a judicial administrator under RULE 68.
The duty of an administrator to render an account is not a mere
incident of an administration proceeding which can be waived of
disregarded when the same is terminated. It is a duty that has to
be performed and duly acted upon by the court before the
administration is finally closed and terminated. The fact that all the
heirs have entered into an extrajudicial settlement and partition
cannot be interpreted as a waiver of their ibjections to the accounts
filed by the administrator not only because it would be a derogation
of the rules but also because there is nothing provided in the said
partition that the accounts shall be deemed waived or condoned.
DE GUZMAN v. DE GUZMAN-CARILLO (1978)
SUMMARY: Victoriano De Guzman, as the duly appointed
administrator of the estate of his late father, disbursed certain
amounts from the income of the estate for the improvement and
renovation of the decedent's residential house, the living expenses
of one of the heirs while occupying the family home without paying
rent, the expenses for stenographic notes, unexplained
representation expenses, expenses incurred during the celebration
of the first death anniversary of the deceased, the lawyer's
subsistence, cost of gift to the physician who attended to the
testator during his last illness, and irrigation fee. The Supreme
Court held that all items, with the exception of the living expenses
of one of the heirs while occupying the family home without rent,
the cost of stenographic notes, the unexplained representation
expenses, and the expenses incurred during the celebration of the
first death anniversary of the decedent inured to the benefit of all
the heirs and were incurred in connection with the care,
management and settlement of the estate, and were, therefore
allowable.
DE MENDOZA v. PACHECO (1937)
SUMMARY: Soriano, the administrator of the estate of Baldomero
Cosme filed a P5,000 bond secured by sureties Pacheco and
Cordero. It was shown that Soriano owed the estate of Cosme the
amount of P23, 603.21. Since Cosme can’t pay, the new
administratrix Rosario Cosme demanded the execution of the bond.
CFI granted. Later, there was a settlement agreement between
Cosme and Soriano where the latter ceded to the estate being
administered certain real properties. Cosme had the sheriff levy on
the property and had it advertised for sale. The sureties—Pacheco
and Cordero, filed a motion to discharge. Denied up to the SC. Upon
remand, they then questioned the jurisdiction of the CFI in issuing
the Order of Execution. CFI denied. SC affirmed.
DOCTRINE: It is clear that a CFI, exercising probate jurisdiction is
empowered to require the filing of the administrator's bond, to fix
the amount thereof, and to hold it accountable for any breach of
the administrator's duty. Possessed, as it is, with an all- embracing
power over the administrator's bond and over administration
proceedings, a CFI in a probate proceeding cannot be devoid of
legal authority to execute and make that bond answerable for the
very purpose for which it was filed. It is true that the law does not
say expressly or in so many words that such court has power to
execute the bond of an administrator, but by necessary and logical
implication, the power is there as eloquently as if it were phrased
in unequivocal terms.
5. Appointment of special administrator
Regular Administrator Special Administrator
Appointed by the court in Appointed by the court
the following instances: when:
1. Testator did not appoint 1. there is DELAY in
an executor granting letters
2. The appointment was testamentary or
refused administration
3. The will was disallowed 2. when the executor is a
4. No will (intestate claimant of the estate
succession) 3. by any cause, including
an appeal from allowance
or disallowance of a will
Should pay the debts of Cannot pay debts of the
the estate estate unless ordered by
the court.
Order of Appointment is Order of Appointment is
final and appealable. interlocutory and is not
appealable
RULE 80
Special Administrator
Section 1. Appointment of special administrator. — When there is
delay in granting letters testamentary or of administration by any
cause including an appeal from the allowance or disallowance of a
will, the court may appoint a special administrator to take
possession and charge of the estate of the deceased until the
questions causing the delay are decided and executors or
administrators appointed.
Section 2. Powers and duties of special administrator. — Such
special administrator shall take possession and charge of the
goods, chattels, rights, credits, and estate of the deceased and
preserve the same for the executors or administrator afterwards
appointed, and for that purpose may commence and maintain suits
23
as administrator. He may sell only such perishable and other
property as the court orders sold. A special administrator shall not
be liable to pay any debts of the deceased unless so ordered by the
court.
Section 3. When powers of special administrator cease. Transfer of
effects. Pending suits. — When letters testamentary or of
administration are granted on the estate of the deceased, the
powers of the special administrator shall cease, and he shall
forthwith deliver to the executor or administrator the goods,
chattels, money, and estate of the deceased in his hands. The
executor or administrator may prosecute to final judgment suits
commenced by such special administrator.
RULE 81, Section 4. Bond of special administrator. — A special
administrator before entering upon the duties of his trust shall give
a bond, in such sum as the court directs, conditioned that he will
make and return a true inventory of the goods, chattels, rights,
credits, and estate of the deceased which come to his possession
or knowledge, and that he will truly account for such as are received
by him when required by the court, and will deliver the same to the
person appointed executor or administrator, or to such other
person as may be authorized to receive them.
Special Administrator
When appointed 1. Delay in granting of letters by any cause,
appointed including appeal in the probate of
the will
2. Executor is a claimant of the estate that he
represents (special administrator has the
same powers as a general administrator, but
only insofar as the claim of the executor is
concerned)
Applicability of Order of preference under Rule 78, Sec. 6 not
order of mandatory for special administrator; lies within
preference discretion of probate court
Testamentary and compulsory heirs, legatees,
Notice devisees, executors, and co-executors at least 20
requirement days before date of hearing if by mail or at least
10 days before date of hearing if by personal
service (same as Rule 76, Sec. 4)
1. Payment of a bond in an amount as the court
directs
2. Possession, charge, and preservation of the
goods, chattels, rights, credits, and estate of
the deceased
3. Commencement and maintenance of suits for
the purpose of preserving the estate for the
executor/administrator
4. Sale of only:
a. Perishable property
b. Other property ordered sold by the court
Powers and 5. Payment of debts of deceased only as may be
duties ordered by the court
6. Inventory of goods, chattels, rights, credits,
and estate of the deceased that come to his
possession/knowledge, according to the
conditions of the bond
7. True account of the same, according to the
conditions of the bond
8. Delivery of the same to the appointed
executor/administrator/other person
authorized to so receive, according to the
conditions of the bond
Subject to Not appealable
appeal
 OCAMPO v. OCAMPO (2010)
SUMMARY: Leonardo, Renato and Erlinda are the sole heirs of
Vicente and Maxima Ocampo who died intestate. The Ocampo
siblings co-owned and co-administered the estate left by their
parent. Leonardo died. Leonardo’s heirs alleged that they were
excluded from their rightful share & participation in the estate of
the Ocampo spouses (in representation of Leonardo’s share). So,
Leonardo’s heirs filed for the settlement of the estate of the
Ocampo spouses and prayed for the appointment of administrator.
RTC appointed Dalisay (the wife of Leonardo) and Renato
(Leonardo’s brother) as special joint administrators. Dalisay
appointment was revoked, with Erlinda (Leonardo’s sister)
replacing her (due to unfitness of the former and since Renato and
Erlinda were the nearest of kin of the Ocampo Spouses). However,
the appointment of Renato and Erlinda was later revoked by RTC
(for not posting bond and non-submission of inventory). Melinda
(daughter of Leonardo) was then appointed by RTC as regular
administratrix. CA nullified the revocation of Renato and Erlinda’s
appointment and the appointment of Melinda. SC upheld the
revocation but treated the appointment of Melinda as only that of
special administratrix and not as regular administrator. Doctrine:
The selection or removal of special administrators is not governed
by the rules regarding the selection or removal of regular
administrators. Appointment or removal of special administrators
is subject to court’s discretion. As long as the discretion is exercised
without grave abuse, and is based on reason, equity, justice, and
legal principles, interference by higher courts is unwarranted.
Moreover, even if special administrators had already been
appointed, once the probate court finds the appointees no longer
entitled to its confidence, it is justified in withdrawing the
appointment and giving no valid effect thereto.
PIJUAN v. DE GURREA (1966)
SUMMARY: In a civil case for support, Mrs. Gurrea was awarded a
monthly alimony of P1000. Mr. Gurrea died leaving a will which
disinherited Mrs. Gurrea and son Teodoro. Pijuan, named executor
in the will, filed for probate. Mrs. Gurrea filed motion praying that
Special Administrator be ordered to continue paying the alimony
which had been suspended, and another motion for appointment
as administratrix. Both motions were denied. SC: Claimed right of
preference in Section 6 of Rule 78 of the Revised Rules of Court
exists "if no executor is named in the will or the executor or
executors are incompetent, refuse the trust, or fail to give bond, or
a person dies intestate." à N/A to CAB. The left a document
purporting to be his will, still pending probate. So, it cannot be said,
as yet, that he has died intestate. Document names Marcelo Pijuan
as executor, and he has expressly accepted it, by applying for his
appointment as executor, and upon his appointment as special
administrator, has assumed the duties thereof. The preference
accorded by ROC to the surviving spouse refers to the appointment
of a regular administrator or administratrix, not to that of a special
administrator, and that the order appointing the latter lies within
the discretion of the probate court, and is not appealable.
6. Grounds for removal of administrator
RULE 82
Revocation of Administration, Death, Resignation, and Removal of
Executors or Administrators
Section 1. Administration revoked if will discovered. Proceedings
thereupon. — If after letters of administration have been granted on
the estate of a decedent as if he had died intestate, his will is
proved and allowed by the court, the letters of administration shall
be revoked and all powers thereunder cease, and the administrator
shall forthwith surrender the letters to the court, and render his
account with such time as the court directs. Proceeding for the
24
issuance of letters testamentary or of administration under the will
shall be as hereinbefore provided.
Section 2. Court may be remove or accept resignation of executor
or administrator. Proceeding upon death, resignation, or removal.
— If an executor or administrator neglects to render his account and
settle the estate according to law, or to perform an order or
judgment of the court, or a duty expressly provided by these rules,
or absconds, or becomes insane, or otherwise incapable or
unsuitable to discharge the trust, the court may remove him, or in
its discretion, may permit him to resign. When an executor or
administrator dies, resign, or is removed the remaining executor or
administrator may administer the trust alone, unless the court
grants letters to someone to act with him. If there is no remaining
executor or administrator, administration may be to any suitable
person.
Section 3. Acts before revocation, resignation, or removal to be
valid. — The lawful acts of an executor or administrator before the
revocation of his letters testamentary or of administration, or
before his resignation or removal, shall have the like validity as if
there had been no such revocation, resignation, or removal.
Section 4. Powers of new executor or administrator. Renewal of
license to sell real estate. — The person to whom letters
testamentary or of administration are granted after the revocation
of former letters, or the death, resignation, or removal of a former
executor or administrator, shall have the like powers to collect and
settle the estate not administered that the former executor or
administrator had, and may prosecute or defend actions
commenced by or against the former executor or administrator, and
have execution on judgments recovered in the name of such former
executor or administrator. An authority granted by the court to the
former executor or administrator for the sale or mortgage of real
estate may be renewed in favor of such person without further
notice or hearing.
Summary of cessation and removal of administrators
Duties upon 1. Surrender the letters to the court
revocation of letters 2. Render his account within such time as
of administration court may direct
1. Neglect to perform order or judgment of
court or a duty expressly provided in rules
Grounds for 2. Absconding
removal of executor 3. Insanity, incapability, or unsuitability to
or administrator discharge the trust
4. Neglect to render accounts within 1 year
and when required by court
5. Neglect to settle estate according to rules
(Grounds not exclusive)
1. Adverse interest of administrator to that
of the estate
2. Physical inability and consequent
Other valid grounds unsuitability
for removal 3. False representation by an administrator
in securing his appointment
4. Disbursement of funds of estate without
judicial approval
Subject to appeal Order of removal final and appealable
 GONZALES v. AGUINALDO (1990)
SUMMARY: Beatriz Gonzales and Teresa Olbes were appointed as
co-administratrices of the intestate estate of Doña Ramona
Gonzales vda de Favis. When Gonzales was in the USA, Olbes filed
a case to remove her as co-administratrix. RTC granted the prayer.
SC then ruled in Gonzales favor, holding that only the grounds in
Rule 82, Sec 2 may justify the removal of an administratrix. In the
appointment of the administrator of the estate of a deceased
person, the principal consideration reckoned with is the interest in
said estate of the one to be appointed as administrator.
Administrators have such interest in the execution of their trust as
to entitle them to protection from removal without just cause. Thus,
Rule 82 Sec 2 provides the specific causes authorizing the court to
remove administrators. While courts are vested with discretion to
remove them, they must have factual basis to justify such removal.
There must be evidence of an act or omission on the part of the
administrator not conformable to or in disregard of the rules or the
orders of the court, sufficient or substantial to warrant the removal
of the administrator. In making such a determination, the court
must exercise good judgment, guided by law and precedents.
F. Claims Against the Estate
See annex D for flowchart
RULE 86
Claims Against Estate
Section 1. Notice to creditors to be issued by court. — Immediately
after granting letters testamentary or of administration, the court
shall issue a notice requiring all persons having money claims
against the decedent to file them in the office of the clerk of said
court.
Section 2. Time within which claims shall be filed. — In the notice
provided in the preceding section, the court shall estate the time
for the filing of claims against the estate, which shall not be more
than twelve (12) not less than six (6) months after the date of the
first publication of the notice. However, at any time before an order
of distribution is entered, on application of a creditor who has failed
to file his claim within the previously limited, the court may, for
cause shown and on such terms as are equitable, allow such claim
to be filed within a time not exceeding one (1) month.
Section 3. Publication of notice to creditors. — Every executor or
administrator shall, immediately after the notice to creditors is
issued, cause the same to be published three (3) weeks
successively in a newspaper of general circulation in the province,
and to be posted for the same period in four public places in the
province and in two public places in the municipality where the
decedent last resided.
Section 4. Filing of copy of printed notice. — Within ten (10) days
after the notice has been published and posted in accordance with
the preceding section, the executor or administrator shall file or
cause to be filed in the court a printed copy of the notice
accompanied with an affidavit setting forth the dates of the first
and last publication thereof and the name of the newspaper in
which the same is printed.
Section 5. Claims which must be filed under the notice. If not filed,
barred; exceptions. — All claims for money against the decent,
arising from contract, express or implied, whether the same be due,
not due, or contingent, all claims for funeral expenses and expense
for the last sickness of the decedent, and judgment for money
against the decent, must be filed within the time limited in the
notice; otherwise they are barred forever, except that they may be
set forth as counterclaims in any action that the executor or
administrator may bring against the claimants. Where an executor
or administrator commences an action, or prosecutes an action
already commenced by the deceased in his lifetime, the debtor may
set forth by answer the claims he has against the decedent, instead
25
of presenting them independently to the court as herein provided,
and mutual claims may be set off against each other in such action;
and if final judgment is rendered in favor of the defendant, the
amount so determined shall be considered the true balance
against the estate, as though the claim had been presented directly
before the court in the administration proceedings. Claims not yet
due, or contingent, may be approved at their present value.
Section 6. Solidary obligation of decedent. — Where the obligation
of the decedent is solidary with another debtor, the claim shall be
filed against the decedent as if he were the only debtor, without
prejudice to the right of the estate to recover contribution from the
debtor. In a joint obligation of the decedent, the claim shall be
confined to the portion belonging to him.
Section 7. Mortgage debt due from estate. — A creditor holding a
claim against the deceased secured by mortgage or other collateral
security, may abandon the security and prosecute his claim in the
manner provided in this rule, and share in the general distribution
of the assets of the estate; or he may foreclose his mortgage or
realize upon his security, by action in court, making the executor or
administrator a party defendant, and if there is a judgment for a
deficiency, after the sale of the mortgaged premises, or the
property pledged, in the foreclosure or other proceeding to realize
upon the security, he may claim his deficiency judgment in the
manner provided in the preceding section or he may rely upon his
mortgage or other security alone, and foreclosure the same at any
time within the period of the statute of limitations, and in that event
he shall not be admitted as a creditor, and shall receive no share
in the distribution of the other assets of estate; but nothing herein
contained shall prohibit the executor or administrator from
redeeming the property mortgaged or pledged, by paying the debt
for which it is held as security, under the direction of the court, if
the court shall adjudge it to be for the best interest of the estate
that such redemption shall be made.
Section 8. Claim of executor or administrator against an estate. —
If the executor or administrator has a claim against the estate he
represents, he shall give notice thereof, in writing, to the court, and
the court shall appoint a special administrator, who shall, in the
adjustment of such claim, have the same power and be subject to
the same liability as the general administrator or executor in the
settlement of other claims. The court may order the executor or
administrator to pay to the special administrator necessary funds
to defend such claim.
Section 9. How to file a claim. Contents thereof. Notice to executor
or administrator. — A claim may be filed by delivering the same with
the necessary vouchers to the clerk of court and by serving a copy
thereof on the executor or administrator. If the claim be founded on
a bond, bill, note, or any other instrument, the original need not be
filed, but a copy thereof with all indorsements shall be attached to
the claim and filed therewith. On demand, however, of the executor
or administrator, or by order of the court or judge, the original shall
be exhibited, unless it be list or destroyed, in which case the
claimant must accompany his claim with affidavit or affidavits
containing a copy or particular description of the instrument and
stating its loss or destruction. When the claim is due, it must be
supported by affidavit stating the amount justly due, that no
payments have been made thereon which are not credited, and
that there are no offsets to the same, to the knowledge of the
affiant. If the claim is not due, or is contingent, when filed, it must
also be supported by affidavits stating the particulars thereof.
When the affidavit is made by a person other than the claimant, he
must set forth therein the reason why it is not made by the claimant.
The claim once filed shall be attached to the record of the case in
which the letters testamentary or of administration were issued,
although the court, in its discretion, and as a matter of
convenience, may order all the claims to be collected in a separate
folder.
Section 10. Answer of executor or administrator. Offsets —Within
fifteen (15) days after service of a copy of the claim on the executor
or administrator, he shall file his answer admitting or denying the
claim specifically, and setting forth the admission or denial. If he
has no knowledge sufficient to enable him to admit or deny
specifically, he shall state such want of knowledge. The executor or
administrator in his answer shall allege in offset any claim which
the decedent before death had against the claimant, and his failure
to do so shall bar the claim forever. A copy of the answer shall be
served by the executor or administrator on the claimant. The court
in its discretion may extend the time for filing such answer.
Section 11. Disposition of admitted claim. — Any claim admitted
entirely by the executor or administrator shall immediately be
submitted by the clerk to the court who may approve the same
without hearing; but the court, in its discretion, before approving
the claim, may order that known heirs, legatees, or devisees be
notified and heard. If upon hearing, an heir, legatees, or devisee
opposes the claim, the court may, in its discretion, allow him fifteen
(15) days to file an answer to the claim in the manner prescribed in
the preceding section
Section 12. Trial of contested claim. — Upon the filing of an answer
to a claim, or upon the expiration of the time for such filing, the clerk
of court shall set the claim for trial with notice to both parties. The
court may refer the claim to a commissioner.
Section 13. Judgment appealable. — The judgment of the court
approving or disapproving a claim, shall be filed with the record of
the administration proceedings with notice to both parties, and is
appealable as in ordinary cases. A judgment against the executor
or administrator shall be that he pay, in due course of
administration, the amount ascertained to be due, and it shall not
create any lien upon the property of the estate, or give to the
judgment creditor any priority of payment.
Section 14. Costs. — When the executor or administrator, in his
answer, admits and offers to pay part of a claim, and the claimant
refuses to accept the amount offered in satisfaction of his claim, if
he fails to obtain a more favorable judgment, he cannot recover
costs, but must pay to the executor or administrator costs from the
time of the offer. Where an action commenced against the
deceased for money has been discontinued and the claim
embraced therein presented as in this rule provided, the prevailing
party shall be allowed the costs of his action up to the time of its
discontinuance.
Summary of rules on claims against estate
Claims to recover money; not secured by lien
What claims against any of deceased’s property; not
contemplated extinguished by death but shall be prosecuted
as a money claim against the deceased’s estate
1. Money claims incurred by deceased during
his lifetime
What claims 2. Claims for funeral expenses
should be filed 3. Expenses for last illness of decedent
4. Judgment for money against decedent
(Enumeration is exclusive.)
Notice Published for 3 successive weeks in a
requirement newspaper of general circulation in the province
Posting In 4 public places in the province, AND in 2
requirement public places in the municipality where the
decedent last resided
26
How to file claim 1. Deliver claim with necessary vouchers to
clerk of court
2. Serve copy on executor and administrator
Subject to Appealable by record on appeal, within 30 days
appeal from notice of judgment
1. Time within which claims shall be filed;
exceptions
General Rule: Claims must be filed within the time specified by the
court in its notice which shall not be less than 6 months nor more
than 12 months from the date of the first publication of the notice.
(Sec. 2, Rule 86)
Exception
Belated claims
The Court has the discretion, for cause and upon such terms as are
equitable, to allow contingent claims presented beyond the period
previously fixed provided they are filed within 1 month from the
expiration of such period but in no case beyond the date of entry of
the order of distribution. [Danan v. Buencaminao (1981); Sec. 2,
Rule 86]
Publication for 3 consecutive weeks and posting in 4 public places
in the province and in 2 public places in the municipality where the
decedent last resided. (Sec. 4, Rule 86)
2. Statute of non-claims
RULE 86, Section. 5
Creditors of deceased person must file within time
fixed in notice, which shall not be more than 12
General rule months nor less than 6 months after date of the
first publication. Otherwise, they are barred forever.
Belated claims—On application of creditor who
failed to file his claim within the time period, and at
any time before order of distribution is entered, the
court may, for cause shown, and on equitable
terms, allow claim to be filed within a time not
Exceptions exceeding 1 month from order allowing belated
claims
Creditor barred by statute of non-claims may file
claim as counterclaim in any suit that the executor
or administrator may bring against him
Exception to Administrator/executor’s failure to plead statute of
exceptions non-claims constitutes a waiver
Remedies of creditor holding a claim secured by mortgage or
other collateral [RULE 86, Section 7]
These remedies are alternative:
(1) Abandon/waive security and prosecute claim against the
estate, sharing in the general distribution of the assets
(2) Foreclose his mortgage or realize upon his security by
action in court, making executor or administrator a party
defendant. If there is judgment for deficiency, he may file
a claim against the estate within the statute of non-
claims.
 (3) Rely solely on his mortgage and foreclose judicially or
extrajudicially any time within period of the statute of
limitations. But he cannot be admitted as creditor, and
shall not receive in the distribution of the estate’s other
assets.
3. Claims of executor or administrator against
estate
Procedure to follow if the executor or administrator has a claim
against the estate he represents
(1) Executor/Administrator shall give notice thereof, in writing, to
the court
(2) The court shall appoint a special administrator who shall have
the same powers and liabilities as the general
executor/administrator in the adjustment of such claim.
(3) The court may order the executor or administrator to pay to the
special administrator necessary funds to defend such claim.
(Sec. 8, Rule 86)
4. Payment of debts
RULE 88
Payment of the Debts of the Estate
Section 1. Debts paid in full if estate sufficient. — If, after hearing
all the money claims against the estate, and after ascertaining the
amount of such claims, it appears that there are sufficient assets
to pay the debts, the executor or administrator pay the same within
the time limited for that purpose.
Section 2. Part of estate from which debt paid when provision made
by will. — If the testator makes provision by his will, or designates
the estate to be appropriated for the payment of his debts, the
expenses of administration, or the family expenses, they shall be
paid according to the provisions of the will; but if the provision made
by the will or the estate appropriated, is not sufficient for that
purpose, such part of the estate of the testator, real or personal, as
is not disposed of by will, if any shall be appropriated for that
purpose.
Section 3. Personalty first chargeable for debts, then realty. — The
personal estate of the deceased not disposed of by will shall be first
chargeable with the payment of debts and expenses; and if said
personal estate is not sufficient for tat purpose, or its sale would
redound to the detriment of the participants for the estate, the
whole of the real estate not dispose of by will, or so much thereof
as is necessary, may be sold, mortgaged, or otherwise encumbered
for that purpose by the executor or administrator, after obtaining
the authority of the court therefor. Any deficiency shall be met by
contributions in accordance with the provisions of section 6 of this
rule.
Section 4. Estate to be retained to meet contingent claims. — If the
court is satisfied that a contingent claim duly filed is valid, it may
order the executor or administrator to retain in his hands sufficient
estate to pay such contingent claim when the same becomes
absolute, or if the estate is insolvent, sufficient to pay a portion
equal to the dividend of the other creditors.
Section 5. How contingent claim becoming absolute in two years
allowed and paid. Action against distributees later. — If such
contingent claim becomes absolute and is presented to the court,
or to the executor or administrator, within two (2) years from the
time limited for other creditors to present their claims, it may be
allowed by the court if not disputed by the executor or administrator
and, if disputed, it may be proved and allowed or disallowed by the
court as the facts may warrant. If the contingent claim is allowed,
the creditor shall receive payment to the same extent as the other
27
creditors if the estate retained by the executor or administrator is
sufficient. But if the claim is not so presented, after having become
absolute, within said two (2) years, and allowed, the assets retained
in the hands of the executor or administrator, not exhausted in the
payment of claims, shall be disturbed by the order of the court to
the persons entitled to the same; but the assets so distributed may
still be applied to the payment of the claim when established, and
the creditor may maintain an action against the distributees to
recover the debt, and such distributees and their estates shall be
liable for the debt in proportion to the estate they have respectively
received from the property of the deceased.
Section 6. Court to fix contributive shares where devisees,
legatees, or heirs have been possession. — Where devisees,
legatees, or heirs have entered into possession of portions of the
estate before the debts and expenses have been settled and paid,
and have become liable to contribute for the payment of such debts
and expenses, the court having jurisdiction of the estate may, by
order for that purpose, after hearing, settle the amount of their
several liabilities, and order how much and in what manner each
person shall contribute, and may issue execution as circumstances
require.
Section 7. Order of payment if estate insolvent — If the assets which
can be appropriated for the payment of debts are not sufficient for
that purpose, the executor or administrator shall pay the debts
against the estate, observing the provisions of Articles 1059 and
2239 to 2251 of the Civil Code.
Section 8. Dividends to be paid in proportion to claims. — If there
are no assets sufficient to pay the credits of any once class of
creditors after paying the credits entitled to preference over it, each
creditor within such class shall be paid a dividend in proportion to
his claim. No creditor of any one class shall receive any payment
until those of the preceding class are paid.
Section 9. Estate of insolvent non-resident, how disposed of. — In
case administration is taken in the Philippine of the estate of a
person who was at the time of his death an inhabitant of another
country, and who died insolvent, hi estate found in the Philippines
shall, as far as practicable, be so disposed of that his creditors here
and elsewhere may receive each an equal share, in proportion to
their respective credits.
Section 10. When and how claim proved outside the Philippines
against insolvent resident's estate paid. — If it appears to the court
having jurisdiction that claims have been duly proven in another
country against the estate of an insolvent who was at the time of
his death an inhabitant of the Philippines, and that the executor or
administrator in the Philippines had knowledge of the presentation
of such claims in such country and an opportunity to contest their
allowance, the court shall receive a certified list of such claims,
when perfected in such country, and add the same to the list of
claims proved against the deceased person in the Philippines so
that a just distribution of the whole estate may be made equally
among all its creditors according to their respective claims; but the
benefit of this and the preceding sections shall not be extended to
the creditors in another country if the property of such deceased
person there found is not equally apportioned to the creditors
residing in the Philippines and the other creditor, according to their
respective claims.
Section 11. Order for payment of debts. — Before the expiration of
the time limited for the payment of the debts, the court shall order
the payment thereof, and the distribution of the assets received by
the executor or administrator for that purpose among the creditors,
as the circumstances of the estate require and in accordance with
the provisions of this rule.
Section 12. Orders relating to payment of debts where appeal is
taken. — If an appeal has been taken from a decision of the court
concerning a claim, the court may suspend the order for the
payment of the debts or may order the distributions among the
creditors whose claims are definitely allowed, leaving in the hands
of the executor or administrator sufficient assets to pay the claim
disputed and appealed. When a disputed claim is finally settled the
court having jurisdiction of the estate shall order the same to be
paid out of the assets retained to the same extent and in the same
proportion with the claims of other creditors.
Section 13. When subsequent distribution of assets ordered. — If
the whole of the debts are not paid on the first distribution, and if
the whole assets are not distributed, or other assets afterwards
come to the hands of the executor or administrator, the court may
from time to time make further orders for the distributions of
assets.
Section 14. Creditors to be paid in accordance with terms of order.
— When an order is made for the distribution of assets among the
creditors, the executor or administration shall, as soon as the time
of payment arrives, pay the creditors the amounts of their claims,
or the dividend thereon, in accordance with the terms of such order.
Section 15. Time for paying debts and legacies fixed, or extended
after notice, within what periods. — On granting letters
testamentary or administration the court shall allow to the executor
or administrator a time for disposing of the estate and paying the
debts and legacies of the deceased, which shall not, in the first
instance, exceed one (1) year; but the court may, on application of
the executor or administrator and after hearing on such notice of
the time and place therefor given to all persons interested as it shall
direct, extend the time as the circumstances of the estate require
not exceeding six (6) months for a single extension not so that the
whole period allowed to the original executor or administrator shall
exceed two (2) years.
Section 16. Successor of dead executor or administrator may have
time extended on notice within certain period. — When an executor
or administrator dies, and a new administrator of the same estate
is appointed, the court may extend the time allowed for the
payment of the debts or legacies beyond the time allowed to the
original executor or administrator, not exceeding six (6) months at
a time and not exceeding six (6) months beyond the time which the
court might have allowed to such original executor or administrator;
and notice shall be given of the time and place for hearing such
application, as required in the last preceding section.
Debts Paid in Full if Estate Sufficient
(1) After all money claims heard and ascertained; and
(2) It appears that there are sufficient assets to pay the debts
Executor/administrator shall pay the same within the time limited
for that purpose. (Sec. 1, Rule 88)
The probate court may hold in abeyance intestate proceedings
pending determination of a civil case against the administrator.
Part of Estate from Which Debt Paid When Provision Made by Will
(1) Testator provided for payment of debt
Expenses of administration, or family expenses shall be paid
according to such provisions
(2) If not sufficient
The part of the estate not disposed of by will shall be appropriated
for the purpose (Sec. 2,Rule 88)
28
Personalty First Chargeable for Debts, Then Realty
General Rule: Personal estate not disposed of by will shall be FIRST
chargeable (Sec. 3, Rule 88)
Exceptions:
(1) Not sufficient for the purpose; or
(2) Its sale will redound to the detriment of the participants for the
estate
In which case—
The whole of the real estate not disposed of by will, or so much
thereof as is necessary, may be sold, mortgaged, or otherwise
encumbered for that purpose by the executor/administrator,
Court approval must be obtained first, and
Any deficiency shall be met by contributions in accordance with the
provisions of Sec. 6 of this rule. (Sec. 3, Rule 88)
Estate to Be Retained to Meet Contingent Claims
If court is satisfied that such claim is valid:
(1) It may order the executor/administrator to retain in his hands
sufficient estate for the purpose of paying the contingent claim
when such becomes absolute.
(2) If estate insolvent - Retain a portion equal to the dividend of
the other creditors. [Sec. 4, Rule 88]
Payment of Contingent claim
If allowed - Creditor shall receive payment to the same extent as
the other creditors if the estate retained by the
executor/administrator is sufficient.
Claim not presented after becoming absolute and allowed within 2
year period – The assets retained in the hands of the
executor/administrator, not exhausted in the payment of claims,
shall be distributed by the order of the court to the persons entitled
But the assets so distributed may still be applied to the payment of
the claim when established, and the creditor may maintain an
action against the distributees to recover the debt, and such
distributees and their estates shall be liable for the debt in
proportion to the estate they have respectively received. (Sec. 5,
Rule 88)
Court to Fix Contributive Shares Where Devisees, Legates, or Heirs
Have Been in Possession
(1) Possession before debts and expenses are paid
Court shall
- Hear and settle the amount of their several liabilities
- Order how much and in what manner each shall contribute
- May issue execution as circumstances require. (Sec. 6, Rule 88)
(2) Liability of heirs and distributes
Heirs are not required to respond with their own property for the
debts of their deceased ancestors. But after partition of an estate,
the heirs and distributees are liable individually for the payment of
all lawful outstanding claims against the estate in proportion to the
amount or value of the property they have respectively received
from the estate.
Order of Payment if Estate Is Insolvent
Executor/administrator pays the debts against the estate,
observing the provisions of of the Civil Code on preference of
credits. (Sec. 7, Rule 88)
Dividends to Be Paid in Proportion to Claims
If no assets sufficient to pay credits of any one class of creditors
after paying preferred credits, Each creditor within such class shall
be paid dividend in proportion to his claim. No creditor of any one
class shall receive any payment until those of the preceding class
are paid. [Sec. 8, Rule 88]
Insolvent Non-Resident
His estate found in the Philippines shall be so disposed of that his
creditors here and elsewhere may receive each an equal share, in
proportion to their respective credits. (Sec. 9, Rule 88)
Insolvent Resident with Foreign Creditors and Foreign claims
proven in another country
(1) Executor/administrator in the Philippines had knowledge of
the presentation of such claims in such country; and
(2) Executor/administrator had opportunity to contest such
allowance
The court shall:
(1) Receive a certified list of such claims, when perfected in such
country,
(2) And add the same to the list of claims proved against the
deceased person in the Philippines
(3) So that a just distribution of the whole estate may be made
equally among all its creditors
But the benefit of this and the preceding sections shall not be
extended to the creditors in another country if the property of such
deceased person there found is not equally apportioned to the
creditors residing in the Philippines and the other creditor,
according to their respective claims. (Sec. 10, Rule 88)
Order of Payment of Debts
Before the expiration of the time limited for the payment of the
debts
(1) The court shall order the payment thereof, and the distribution
of the assets received by the executor/administrator for that
purpose among the creditors,
(2) As the circumstances of the estate require and in accordance
with the provisions of this rule [Sec. 11, Rule 88]
Appeal Taken From a Decision of the Court Concerning the Claim
The court may:
(1) Suspend the order for payment or order the distribution among
creditors whose claims are definitely allowed
(2) Leave in the hands of executor/administrator sufficient assets
to pay the claim disputed and appealed.
When a disputed claim is finally settled, the court shall order the
claim to be paid out of the assets retained to the same extent and
in the same proportion with the claims of other creditors. (Sec. 12,
Rule 88)
From Time to Time Further Orders of Distribution
(1) Whole of the debts not paid on first distribution; and
(2) If the whole assets not distributed or other assets afterwards
come to the hands of executor/administrator. (Sec. 13, Rule
88)
Creditors to Be Paid in Accordance With Terms of Order
When an order is made for the distribution of assets among
creditors, the executor or administrator shall, as soon as the time
of payment arrives, pay the creditors the amounts of their claims,
or the dividend thereon, in accordance with the terms of such order.
(Sec. 14, Rule 88)
Court Shall Allow Executor or Administrator a Time for Disposing the
Estate and Paying Debts and Legacies
Period allowed to original or executor or administrator
- Not exceeding 1 year
- Two years when special circumstances require (Sec. 15, Rule
88)
29
Extension allowed to successor of Dead Executor or Administrator
- Not exceeding 6 months at a time and not exceeding six
months beyond the time allowed to original executor or
administrator or
- Not exceeding two years and a half. (Sec. 16, Rule 88)
Grounds for Extension
(1) Original executor/administrator dies
(2) New administrator appointed
(3) Court must hear the application.
Requisites
(1) Executor/administrator must apply.
(2) Notice of the time and place of hearing.
SANTOS v. MANARANG (1914)
SUMMARY: Don Lucas de Ocampo died. His last will and testament
left to properties to his three children, but included a clause
enumerating debts he had contracted, stating his desire that they
be paid by his wife and executors. Among the debts mentioned in
the list are two in favor of Isidro Santos. The will was duly probated
and a committee was regularly appointed to hear and determine
claims against the estate. This committee submitted its report to
the court. Santos presented a petition to the court asking that the
committee be required to reconvene and pass upon his claims
against the estate which were recognized in the will. This petition
was denied, so he appealed to the SC. Doctrine: Debts may accrue
and be paid in whole or in part between the time the will is made
and the death of the testator. To allow a debt mentioned in the will
in the amount expressed there on the ground that this was the
desire of the testator, when, in fact, the debt had been wholly or
partly paid, would be unjust to the residuary heirs. A debt arises
from an obligation recognized by law; once established, it can only
be extinguished in a lawful manner. Debts are demandable and
must be paid in legal tender. Legacies may consist of specific
articles of personal property and must be satisfied accordingly. In
the case at bar, in order to collect as legacy the sum mentioned in
the will, Santos must show that it is a legacy and not a debt. As he
has already attempted to show that this sum represents a debt, it
is an anomaly for Santos to urge now it is a legacy.
BARREDO v. CA (1962)
SUMMARY: McDonough executed a promissory note with mortgage
in favor of Barredo. They both died eventually. Special proceedings
were filed for McDonough’s intestate estate. On August 17, 1945,
McDonough’s estate administrator published notice to creditors in
a newspaper requiring them to file claims within 6 months, and this
period would expire on Feb. 23, 1946. Barredo’s heirs belatedly
filed a claim on October 22, 1947. Lower court allowed claim, CA
reversed. SC affirmed CA. The one-month period for filing late
claims mentioned in Section 2, Rule 87, of the Rules of Court,
begins to run from the order authorizing the filing of the claims, and
not from the expiration of the original period fixed by the court for
the presentation of claims. However, the probate court's discretion
in allowing a claim after the regular period for filing claims but
before entry of an order of distribution presupposes not only a claim
of apparent merit but also the existence of a cause to justify the
tardiness in filing the claim. There was no such good cause in this
case.
PIZARRO v. CONSOLACION (1988)
SUMMARY: In the special proceedings for the settlement of the
estate of Garcia, CFI issued an order on March 27, 1978 requiring
the filing of creditors' claim against the said estate within the period
of 6 months from the date of the first publication. The petitioners
as creditors filed claims over the property on March 5 and 29,
1979. SC ruled that the CFI erred in issuing its order and that the
creditors/petitioner actually filed their claims on time. In this case
the trial court set the period for the filing of the claims within 6
months from the date of the first publication of the notice. It was
obviously short of the minimum limit of 6 months provided for by
the law. Since the notice issued and the period set by the trial court
was not in accordance with the requirements of Section 2, Rule 86,
what should then apply is the period as provided for by the rules
which is not less than 6 months nor more than 12 months from the
date of first publication of notice. The purpose of the law, in fixing
a period within which claims against an estate must be presented,
is to insure a speedy settlement of the affairs of the deceased
person and the early delivery of the property to the person entitled
to the same.
AGUAS v. LLEMOS (1962)
SUMMARY: Upon filing of action for damages for tortious conduct,
defendant died. SC: The present suit is one for damages under the
Rule 88 Sec 1(3), it having been held that "injury to property" is not
limited to injuries to specific property, but extends to other wrongs
by which personal estate is injured or diminished.
VERA v. FERNANDEZ (1979)
SUMMARY: The CFI dismissed the Motion for Allowance of Claim
and For An Order of Payment of Taxes by the BIR in the intestate
estate of Luis Tongoy for deficiency income taxes on the ground
that the claim was filed beyond the period provided and was already
barred under Rule 86, Sec. 5.The SC reversed and ruled that the
makes no mention of claims for monetary obligations of the
decedent created by law; such as taxes which is entirely of different
character from the claims expressly enumerated therein. Claims for
taxes against a decedent's estate, as well as the matter of
prescription thereof are governed by the provisions of the NIRC and
before the inheritance has passed to the heirs, the unpaid taxes
due the government may be collected even without its having been
presented under Rule 86, Sec. 2.
JACOB v. CA (1990)
SUMMARY: Dr. Jacob executed a SPoA in favor of Centenera, who
enetered into loan agreements on his behalf. He secured loans with
Dr. Jacob’s properties. Dr. Jacob died March 1979. The Bank
foreclosed these properties and the public auction sale was held in
May 1979 due to Centenera’s failure to pay. RTC granted a writ of
possession to the Bank as the highest bidder in public auction.
Tomasa argues that extrajudicial foreclosure can only be
prosecuted during the lifetime of Dr. Jacob because that kind of
foreclosure under Act No. 3135 is authorized only because of the
SPoA inserted in the mortgage deed. SPoA cannot extend beyond
the lifetime of the supposed mortgagor. SC held that under Sec 7
, Rule 86, a mortgagee may rely on the mortgage exclusively, or
other security and foreclose the same at anytime, before it is barred
by prescription, without the right to file a claim for any deficiency.
The right of the mortgagee bank to extrajudicially foreclose the
mortgage after the death of the mortgagor, acting through his
attorney-in-fact, did not depend on the authority in the deed of
mortgage executed by the latter. That right existed independently
of said stipulation.
BRIONES v. HENSON-CRUZ (2008)
SUMMARY: Atty. Briones was appointed Special Administrator. He
later submitted his final report to the RTC for approval while also
praying for commission. The heirs opposed the approval of the
report. They prayed that they be allowed to examine the documents,
receipts, etc. mentioned in the report, and prayed for the denial of
the commission. The RTC appointed an accounting firm for the
audit. The heirs moved for reconsideration explaining that they
were not asking for an external audit but simply for them to be
allowed to examine the receipts etc. On April 3, the RTC issued an
Order 1) reiterating its designation for the accounting firm, and 2)
allowing the payment of the commission (among other orders).
First, from #2, the heirs filed an appeal with the RTC. Then from
#1, the heirs filed a Petition for Certiorari, Prohibition and
30
Mandamus with CA. On the appeal (re#2), the RTC dismissed it for
forum shopping. The heirs filed MR but was denied thus they filed
a Petition for Mandamus with CA. CA granted and ordered RTC to
give the appeal due course. Atty. Briones went to the SC via the
present petition insisting on forum shopping. HELD: SC ruled that
the appeal and the petition filed by the heirs before the RTC and CA
respectively were of different natures and involved different issues
although stemming from the same Order. #1 was interlocutory
because it was preparatory therefore not appealable but can be
subject of a Rule 65 petition. #2 was final as it was on an
independently determinable issue and as can be gleaned from Rule
86, s. 8 and s. 13, it was appealable. By their respective natures,
these matters can exist independently of one another and can
proceed separately as envisioned under Rule 109 providing for
multiple appeals in special proceedings. Thus, there was no forum-
shopping, and the separate recourse pursued by the heirs was
proper. CA did not err in ordering the RTC to allow the appeal.
DOCTRINE: An order for the payment of Special Administrator’s
Commission is a claim against the estate (Rule 86, s. 8). This is final
and appealable (Rule 86, s. 13) notwithstanding that there are
others interlocutory in nature from the same Order. Multiple
appeals are allowed in special proceedings (Rule 109).
ROMUALDEZ v. TIGLAO (1981)
SUMMARY: Romualdez sued Antonio Tiglao for unpaid rentals.
Included in the suit was Felisa Tiglao. Judgment was rendered in
favor of Romualdez but it was not satisfied. Romualdez filed a suit
to revive judgment. At this time, Felisa’s estate had died and her
estate was being settled in a spec pro. Still, her estate was made
defendant in the suit to revive judgment. The administratrix
questioned this on the basis of Sec 1, Rule 87. The Court held that
the inclusion of Felisa’s estate is proper. Original judgment which
was rendered on May 31, 1960, has become stale because of its
non-execution after the lapse of five years. Accordingly, it cannot
be presented against the Estate of FelisaTiglao unless it is first
revived by action. This is precisely why Romualdez et al have
instituted the second suit whose object is not to make the Estate of
Felisa Tiglao pay the sums of money adjudged in the first judgment
but merely to keep alive said judgment so that the sums therein
awarded can be presented as claims against the estate of Felisa in
the special proceeding case.
G. Action by and against Executors and Administrators
RULE 87
Actions By and Against Executors and Administrators
Section 1. Actions which may and which may not be brought
against executor or administrator. — No action upon a claim for the
recovery of money or debt or interest thereon shall be commenced
against the executor or administrator; but to recover real or
personal property, or an interest therein, from the estate, or to
enforce a lien thereon, and actions to recover damages for an injury
to person or property, real or personal, may be commenced against
him.
Section 2. Executor or administrator may bring or defend actions
which survive. — For the recovery or protection of the property or
rights of the deceased, an executor or administrator may bring or
defend, in the right of deceased, actions for causes which survive.
Section 3. Heir may not sue until shall assigned — When an
executor or administrator is appointed and assumes the trust, no
action to recover the title or possession of lands or for damages
done to such lands shall be maintained against him by an heir or
devisee until there is an order of the court assigning such lands to
such heir or devisee or until the time allowed for paying debts has
expired.

Section 4. Executor or administrator may compound with debtor. —
Within the approval of the court, an executor or administrator may
compound with the debtor of the deceased for a debt due, and may
give a discharge of such debt on receiving a just dividend of the
estate of the debtor.
Section 5. Mortgage due estate may be foreclosed. — A mortgage
belonging to the estate of a deceased person, as mortgagee or
assignee of the right or a mortgage, may be foreclosed by the
executor or administrator.
Section 6. Proceedings when property concealed, embezzled, or
fraudulently conveyed. — If an executor or administrator, heir,
legatee, creditor or other individual interested in the estate of the
deceased, complains to the court having jurisdiction of the estate
that a person is suspected of having concealed, embezzled, or
conveyed away any of the money, goods, or chattels of the
deceased, or that such person has in his possession or has
knowledge of any deed, conveyance, bond, contract, or other
writing which contains evidence of or tends or discloses the right,
title, interest, or claim of the deceased, the court may cite such
suspected person to appear before it any may examine him on oath
on the matter of such complaint; and if the person so cited refuses
to appear, or to answer on such examination or such interrogatories
as are put to him, the court may punish him for contempt, and may
commit him to prison until he submits to the order of the court. The
interrogatories put any such person, and his answers thereto, shall
be in writing and shall be filed in the clerk's office.
Section 7. Person entrusted with estate compelled to render
account. — The court, on complaint of an executor or administrator,
may cite a person entrusted by an executor or administrator with
any part of the estate of the deceased to appear before it, and may
require such person to render a full account, on oath, of the money,
goods, chattels, bonds, account, or other papers belonging to such
estate as came to his possession in trust for such executor or
administrator, and of his proceedings thereon; and if the person so
cited refuses to appear to render such account, the court may
punish him for contempt as having disobeyed a lawful order of the
court.
Section 8. Embezzlement before letters issued — If a person, before
the granting of letters testamentary or of administration on the
estate of the deceased, embezzles or alienates any of the money,
goods, chattels, or effects of such deceased, such person shall be
liable to an action in favor of the executor or administrator of the
estate for double the value of the property sold, embezzled, or
alienated, to be recovered for the benefit of such estate.
Section 9. Property fraudulently conveyed by deceased may be
recovered. When executor or administrator must bring action. —
When there is a deficiency of assets in the hands of an executor or
administrator for the payment of debts and expenses of
administration, and the deceased in his lifetime had conveyed real
or personal property, or a right or interest therein, or an debt or
credit, with intent to defraud his creditors or to avoid any right, debt,
or duty; or had so conveyed such property, right, interest, debt or
credit that by law the conveyance would be void as against his
creditors, and the subject of the attempted conveyance would be
liable to attachment by any of them in his lifetime, the executor or
administrator may commence and prosecute to final judgment an
action for the recovery of such property, right, interest, debt, or
credit for the benefit of the creditors; but he shall not be bound to
commence the action unless on application of the creditors of the
deceased, not unless the creditors making the application pay such
part of the costs and expenses, or give security therefor to the
executor or administrator, as the court deems equitable.
31
Section 10. When creditor may bring action. Lien for costs. — When
there is such a deficiency of assets, and the deceased in his lifetime
had made or attempted such a conveyance, as is stated in the last
preceding section, and the executor or administrator has not
commenced the action therein provided for, any creditor of the
estate may, with the permission of the court, commence and
prosecute to final judgment, in the name of the executor or
administrator, a like action for the recovery of the subject of the
conveyance or attempted conveyance for the benefit of the
creditors. But the action shall not be commenced until the creditor
has filed in a court a bond executed to the executor or
administrator, in an amount approved by the judge, conditioned to
indemnify the executor or administrator against the costs and
expenses incurred by reason of such action. Such creditor shall
have a lien upon any judgment recovered by him in the action for
such costs and other expenses incurred therein as the court deems
equitable. Where the conveyance or attempted conveyance had
been made by the deceased in his lifetime in favor of the executor
or administrator, the action which a credit may bring shall be in the
name of all the creditors, and permission of the court and filing of
bond as above prescribed, are not necessary.
1. Actions that may be brought against executors
and administrators
Actions to be Brought Against Administrators
(1) Recover real or personal property or interest therein
(2) Or to enforce a lien thereon and
(3) Actions to recover damages for an injury to a person or
property [ Sec. 1, Rule 87]
Actions which may NOT brought against Administrators
Claim for the recovery of money or debt or interest cannot be
brought against executors/administrators.
Executor or Administrator may Bring or Defend Actions Which
Survive Death
For the recovery or protection of the property or rights of the
deceased (Sec. 2, Rule 87)
Covers injury to property i.e. not only limited to injuries to specific
property, but extends to other wrongs by which personal estate is
injured or diminished.
2. Requisites before creditor may bring an action
for recovery of property
When recovery of property fraudulently conveyed by deceased may
be recovered
(1) There is deficiency of assets and the deceased, in his lifetime,
had conveyed real or personal property, right or interest
therein, or debt or credit with intent to defraud his creditors or
avoid any right, debt or duty; or
(2) Had so conveyed such property, right, interest, debt or credit
that by law the conveyance would be void as against the
creditors; and
(3) The subject of the attempted conveyance would be liable to
attachment by any of them in his lifetime. (Sec. 9, Rule 87)
Recovery by the EXECUTOR/ADMINISTRATOR of property
fraudulently conveyed
(1) Commence and prosecute to final judgment an action for the
recovery of such property, right, interest, debt or credit for
benefit of the creditors
(2) Provided, creditors make an application and pay such part of
the costs and expenses or give security therefor. (Sec. 9, Rule
87)

If a person before granting letters testamentary or administration
(1) Embezzles or alienates
(2) Any of the money, goods, chattels, or effects of such deceased
Consequence: Such person shall be liable to an action in favor of
the executor/administrator of the estate for double the value of the
property sold, embezzled, or alienated, to be recovered for the
benefit of such estate. (Sec. 8, Rule 87)
Recovery by CREDITOR of property fraudulently conveyed
Any creditor may commence and prosecute to final judgment a like
action for the recovery of the subject of the conveyance or
attempted conveyance if the following requisites are satisfied:
(1) If executor/administrator failed to commence such action
(a) With court permission
(b) In the name of the executor/administrator
(c) He files a bond, conditioned to indemnify the
executor/administrator against the cost and expenses
incurred by such action
(2) If conveyance or attempt is made in favor of
executor/administrator
- No need for court permission
- No need for Bond.
- Action shall be brought in the name of all the
creditors
Effect
Such creditor shall have a lien upon any judgment recovered by him
in the action for such costs and other expenses incurred therein as
the court deems equitable. (Sec. 10, Rule 87)
3. Sales, mortgages and other encumbrances
RULE 89
Sales, Mortgages, and Other Encumbrances of Property of
Decedent
Section 1. Order of sale of personalty. — Upon the application of the
executor or administrator, and on written notice to the heirs and
other persons interested, the court may order the whole or a part
of the personal estate to be sold, if it appears necessary for the
purpose of paying debts, expenses of administration, or legacies,
or for the preservation of the property.
Section 2. When court may authorize sale, mortgage, or other
encumbrance of realty to pay debts and legacies through
personalty not exhausted. — When the personal estate of the
deceased is not sufficient to pay the debts, expenses of
administration, and legacies, or where the sale of such personal
estate may injure the business or other interests of those
interested in the estate, and where a testator has not otherwise
made sufficient provision for the payment of such debts, expenses,
and legacies, the court, on the application of the executor or
administrator and on written notice of the heirs, devisees, and
legatees residing in the Philippines, may authorize the executor or
administrator to sell, mortgage, or otherwise encumber so much as
may be necessary of the real estate, in lieu of personal estate, for
the purpose of paying such debts, expenses, and legacies, if it
clearly appears that such sale, mortgage, or encumbrance would
be beneficial to the persons interested; and if a part cannot be sold,
mortgaged, or otherwise encumbered without injury to those
interested in the remainder, the authority may be for the sale,
mortgage, or other encumbrance of the whole of such real estate,
or so much thereof as is necessary or beneficial under the
circumstances.
Section 3. Persons interested may prevent such sale, etc., by giving
bond. — No such authority to sell, mortgage, or otherwise encumber
real or personal estate shall be granted if any person interested in
the estate gives a bond, in a sum to be fixed by the court,
32
conditioned to pay the debts, expenses of administration, and
legacies within such time as the court directs; and such bond shall
be for the security of the creditors, as well as of the executor or
administrator, and may be prosecuted for the benefit of either.
Section 4. When court may authorize sale of estate as beneficial to
interested persons. Disposal of proceeds. — When it appears that
the sale of the whole or a part of the real or personal estate, will be
beneficial to the heirs, devisees, legatees, and other interested
persons, the court may, upon application of the executor or
administrator and on written notice to the heirs, devisees, and
legatees who are interested in the estate to be sold, authorize the
executor or administrator to sell the whole or a part of said estate,
although not necessary to pay debts, legacies, or expenses of
administration; but such authority shall not be granted if
inconsistent with the provisions of a will. In case of such sale, the
proceeds shall be assigned to the persons entitled to the estate in
the proper proportions.
Section 5. When court may authorize sale, mortgage, or other
encumbrance of estate to pay debts and legacies in other
countries. — When the sale of personal estate, or the sale,
mortgage, or other encumbrance of real estate is not necessary to
pay the debts, expenses of administration, or legacies in the
Philippines, but it appears from records and proceedings of a
probate court in another country that the estate of the deceased in
such other country is not sufficient to pay the debts, expenses of
administration, and legacies there, the court here may authorize
the executor or administrator to sell the personal estate or to sell,
mortgage, or otherwise encumber the real estate for the payment
of debts or legacies in the other country, in same manner as for the
payment of debts or legacies in the Philippines.
Section 6. When court may authorize sale, mortgage, or other
encumbrance of realty acquired on execution or foreclosure. — The
court may authorize an executor or administrator to sell mortgage,
or otherwise encumber real estate acquired by him on execution or
foreclosure sale, under the same circumstances and under the
same regulations as prescribed in this rule for the sale, mortgage,
or other encumbrance of other real estate.
Section 7. Regulation for granting authority to sell, mortgage, or
otherwise encumber estate. — The court having jurisdiction of the
estate of the deceased may authorize the executor or administrator
to sell personal estate, or to sell, mortgage, or otherwise encumber
real estate, in cases provided by these rules and when it appears
necessary or beneficial under the following regulations.
a) The executor or administrator shall file a written petition
setting forth the debts due from the deceased, the expenses
of administration, the legacies, the value of the personal
estate, the situation of the estate to be sold, mortgaged, or
otherwise encumbered, and such other facts as show that the
sale, mortgage, or other encumbrance is necessary or
beneficial.
b) The court shall thereupon fix a time and place for hearing such
petition, and cause notice stating the nature of the petition,
the reasons for the same, and the time and place of hearing,
to be given personally or by mail to the persons interested, and
may cause such further notice to be given, by publication or
otherwise, as it shall deem proper;
c) If the court requires it, the executor or administrator shall give
an additional bond, in such sum as the court directs,
conditioned that such executor or administrator will account
for the proceeds of the sale, mortgage, or other encumbrance;
d) If the requirements in the preceding subdivisions of this
section have been complied with, the court, by order stating
such compliance, may authorize the executor or administrator
to sell, mortgage, or otherwise encumber, in proper cases,
such part of the estate as is deemed necessary, and in case of
sale the court may authorize it to be public or private, as would
 be most beneficial to all parties concerned. The executor or
administrator shall be furnished with a certified copy of such
order;
e) If the estate is to be sold at auction, the mode of giving notice
of the time and place of the sale shall be governed by the
provisions concerning notice of execution sale;
f) There shall be recorded in the registry of deeds of the province
in which the real estate thus sold, mortgage, or otherwise
encumbered is situated, a certified copy of the order of the
court, together with the deed of the executor or administrator
for such real estate, which shall be as valid as if the deed had
been executed by the deceased in his lifetime.
Section 8. When court may authorize conveyance of realty which
deceased contracted to convey. Notice. Effect of deed. — Where the
deceased was in his lifetime under contract, binding in law, to deed
real property, or an interest therein, the court having jurisdiction of
the estate may, on application for that purpose, authorize the
executor or administrator to convey such property according to
such contract, or with such modifications as are agreed upon by the
parties and approved by the court; and if the contract is to convey
real property to the executor or administrator, the clerk of court
shall execute the deed. The deed executed by such executor,
administrator, or clerk of court shall be as affectual to convey the
property as if executed by the deceased in his lifetime; but no such
conveyance shall be authorized until notice of the application for
that purpose has been given personally or by mail to all persons
interested, and such further notice has been given, by publication
or otherwise, as the court deems proper; nor if the assets in the
hands of the executor or administrator will thereby be reduced so
as to prevent a creditor from receiving his full debt or diminish his
dividend.
Section 9. When court may authorize conveyance of lands which
deceased held in trust. — Where the deceased in his lifetime held
real property in trust for another person, the court may after notice
given as required in the last preceding section, authorize the
executor or administrator to deed such property to the person, or
his executor or administrator, for whose use and benefit it was so
held; and the court may order the execution of such trust, whether
created by deed or by law.
Personal property may, upon order, be sold
(1) To pay debts, expenses, legacies (Sec. 1, Rule 89)
(2) If it appears necessary for the preservation of the property
(Sec. 1, Rule 89)
(3) If sale will be beneficial to the heirs, devisees, legatees and
other interested persons and is not inconsistent with the
provisions of the will (Sec. 4, Rule 89)
Real property may, upon order, be
Sold, mortgaged, encumbered to pay debts when:
(1) Personal estate is insufficient to pay the debts
(2) Sale of personal estate may injure the business of persons
interested in the estate
(3) Property appropriated by testator in his will is insufficient to
pay debts (Sec. 2, Rule 89)
Sold, even if not to pay the debts when:
Sale will be beneficial to the heirs, devisees, legatees and other
interested persons and is not inconsistent with the provisions of the
will (Sec. 4, Rule 89)
RIOFERIO v. TAN (2004)
SUMMARY: Alfonso died without a will. He left a wife and 7 children
(respondents) and a paramour and 3 children (petitioners).
Petitioners execute extrajudicial settlement of estate of deceased
person with quitclaim over certain properties and obtained a loan
using the properties for mortgage. Respondents found out and filed
a petition for letters of administration and complaint for annulment
of extrajudicial settlement. Petitioners claim that heirs have no
33
standing because it should be administrator who should file on
behalf of estate. In the petition for letters of admin, no
administrator has been appointed yet. SC: before filing of petition
for letters, heirs can file. After filing but before appointment of
admin, heirs can file. After appointment of admin, heirs can file if
admin refuses to file or if admin participated in the act complained
of and is made a party defendant.
H. Distribution and Partition
RULE 90
Distribution and Partition of the Estate
Section 1. When order for distribution of reside made. — When the
debts, funeral charges, and expenses of administration, the
allowance to the widow, and inheritance tax, if any, chargeable to
the estate in accordance with law, have been paid, the court, on the
application of the executor or administrator, or of a person
interested in the estate, and after hearing upon notice, shall assign
the residue of the estate to the persons entitled to the same,
naming them and the proportions, or parts, to which each is
entitled, and such persons may demand and recover their
respective shares from the executor or administrator, or any other
person having the same in his possession. If there is a controversy
before the court as to who are the lawful heirs of the deceased
person or as the distributive shares to which each person is entitled
under the law, the controversy shall be heard and decided as in
ordinary cases.
No distribution shall be allowed until the payment of the obligations
above mentioned has been made or provided for, unless the
distributees, or any of them, give a bond, in a sum to be fixed by the
court, conditioned for the payment of said obligations within such
time as the court directs.
Section 2. Questions as to advancement to be determined. —
Questions as to advancement made, or alleged to have been made,
by the deceased to any heir may be heard and determined by the
court having jurisdiction of the estate proceedings; and the final
order of the court thereon shall be binding on the person raising the
questions and on the heir.
Section 3. By whom expenses of partition paid. — If at the time of
distribution the executor or administrator has retained sufficient
effects in his hands which may lawfully be applied for the expenses
of partition of the properties distributed, such expenses of partition
may be paid by such executor or administrator when it appears
equitable to the court and not inconsistent with the intention of the
testator; otherwise, they shall be paid by the parties in proportion
to their respective shares or interest in the premises, and the
apportionment shall be settled and allowed by the court, and, if any
person interested in the partition does not pay his proportion or
share, the court may issue an execution in the name of the executor
or administrator against the party not paying the sum assessed.
Section 4. Recording the order of partition of estate. — Certified
copies of final orders and judgments of the court relating to the real
estate or the partition thereof shall be recorded in the registry of
deeds of the province where the property is situated.
Before there could be a distribution of estate, the following stages
must be followed:
(1) Liquidation of the estate i.e. payment of obligations of the
deceased.
(2) Collation and Declaration of heirs - to determine to whom the
residue of the estate should be distributed.
- Determination the right of a natural child
- Determination of proportionate shares of distributes.
Afterwards, the residue may be distributed and delivered to the
heirs. [Herrera]
 1. Liquidation
General Rule: Before an order of distribution or assignment, it must
be shown that the “debts, funeral expenses and expenses of
administration, allowances, taxes, etc., chargeable to the estate”
have been paid.
Exception: The distributees give a bond conditioned on the payment
of above obligations (Sec. 1, Rule 90)
The part distributed must not be subject to any controversy or
appeal. (Sec. 2, Rule 109)
2. Project of partition
A project of partition is merely a proposal for the distribution of the
hereditary estate which the court may accept or reject.
The executor/administrator has no duty to prepare and present the
same under the Rules. The court may, however, require him to
present such project to better inform itself of the condition of the
estate.
It is the court that makes that distribution of the estate and
determines the persons entitled thereto
(1) On application of executor/administrator or person interested
in the estate
(2) Notice
(3) Hearing
Court shall assign the residue of the estate to the persons entitled
to the same, naming them and the proportions, or parts, to which
each is entitled.
Such persons may demand and recover their respective shares
from the executor/administrator, or any other person having the
same in his possession.
If there is a controversy as to who are heirs or shares such shall be
heard and decided as in ordinary cases. (Sec. 1, Rule 90)
Effect of Final Decree of Distribution
(1) In rem and binding against the whole world.
(2) All persons having interest in the subject matter involved,
whether they are notified or not, are equally bound. [Philippine
Savings Bank v. Lantin (1983)]
(3) The court acquires jurisdiction over all persons interested,
through the publication of the notice prescribed and any order
that may be entered therein is binding against all of
them.[Ramon v. Ortuzar (1951)]
(4) The only instance where a party interested in a probate
proceeding may have a final liquidation set aside is when he is
left out by reason of circumstances beyond his control or
through mistake or inadvertence not imputable to negligence.
3. Remedy of an heir entitled to residue but not
given his share
The better practice for the heir who has not received his share is to
(1) Demand his share through a proper motion in the same
probate or administrative proceedings, or
(2) Motion for reopening of the probate or administrative
proceedings if it had already been closed, and not through
an independent action.
34
4. Instances when probate court may issue
writ of execution
General Rule: Writ of Execution is not allowed in probate
proceedings [Vda de Valera v. Ofilada, 59 SCRA 96]
Exceptions:
(1) To satisfy the contributive shares of devisees, legatees and
heirs in possession of the decedent’s assets (Sec. 6, Rule 88)
(2) To enforce payment of expenses of partition, provided:
- No sufficient effects are retained in the hands of the executor
or administrator at the time of distribution
- Expenses of partition are to be paid by interested parties in
proportion to their respective shares or interest
- Such apportionment are settled and allowed by the court
- Any person interested in the partition does not pay his/her
proportion or share (Sec. 3, Rule 90)
(3) To satisfy the costs when a person is cited for examination in
probate proceedings (Sec. 13, Rule 142)
DEL ROSARIO v. CA (1989)
SUMMARY: Respondent Antonio J. Alberto, Jr. was the
acknowledged natural son of Antonio, Sr. He was allegedly excluded
as an heir during the intestate proceedings of his father’s estate,
so he filed a complaint for acknowledgment and partition against
his father’s widow and legitimate children (petitioners herein). CFI
dismissed it but CA revered. SC reinstated the CFI’s decision,
finding that the complaint was barred by prior judgment and had
already prescribed. Also, the plaintiff was guilty of laches. Even on
the merits, the testimony of plaintiff’s witness was not credible.
DOCTRINES: A final order of distribution of the estate of a deceased
person vests the title to the land of the estate in the distributees;
and that the only instance where a party interested in a probate
proceeding may have a final liquidation set aside is when he is left
out by reason of circumstances beyond his control or through
mistake or inadvertence not imputable to negligence. Even then,
the better practice to secure relief is reopening of the same case
by proper motion within the reglementary period, instead of an
independent action, the effect of which, if successful, would be, as
in the instant case, for another court or judge to throw out a
decision or order already final and executed and reshuffle
properties long ago distributed and disposed of. Also, while as a
general rule the action for partition among co-owners does not
prescribe so long as the co-ownership is expressly or impliedly
recognized (Art. 494, Civil Code), petitioners had never recognized
respondent as a co-owner or co-heir either expressly or impliedly.
Consequently, the rule on non-prescription of action for partition of
property owned in common does not apply to the case at bar.
REYES v. BARRETO-DATU (1967)
SUMMARY: Spouses Barretto and Gerardo acquired a vast estate
during their lifetime. When Bibiano died, he left his share of
properties in a will to Salud Barretto and Lucia Milagros Barretto.
Maria was appointed administratrix, and she prepared a project of
partition, signed by her in her own behalf and as guardian of the
minor Milagros. The project of partition was approved, and the
distribution of the estate and delivery of the shares of the heirs
followed. Salud took immediate possession of her share and had
new titles issued in her name. When Maria Gerardo died, it was
discovered that she executed two wills. The first instituted Salud
and Milagros as heirs, while the second revoked the earlier will and
instituted Milagros as the only heir. It was found in another decision
that Salud was not the daughter of Bibiano and Maria. Tirso Reyes
filed an action to recover 1/2 share in a fishpond, being the share
of his wards (minor heirs of Salud, now deceased). Milagros argues
that the project of partition from which Salud acquired the fishpond
is void ab initio; that Salud did not acquire title thereto; and that the
court did not acquire jurisdiction over the person of Milagros who
was then a minor. CFI ruled for Milagros, dismissing Tirso’s
complaint and ordering the delivery of properties (received by
Salud) to Milagros. SC reversed CFI insofar as it ordered the
reconveyance of property to Milagros, and affirmed the denial of
any right of Milagros to accounting. SC ordered that the records be
returned to the court of origin and to proceed with the action for
partition. Independently of a project of partition which is merely
a proposal for distribution of the estate (that the court may accept
or reject), it is the court alone that makes the distribution of the
estate and determines the persons entitled thereto and the parts
to which each is entitled, and it is that judicial decree of distribution,
once final, that vests title in the distributees. If the decree was
erroneous or not in conformity with law or the testament, the same
should have been corrected by opportune appeal; but once it had
become final, its binding effect is like that of any other judgment in
rem, unless properly set aside for lack of jurisdiction or fraud.
Where a court has validly issued a decree of distribution of the
estate, and the same has become final, the validity or invalidity of
the project of partition becomes irrelevant. Milagros’ argument
would be plausible if it were shown that the sole basis for the
decree of distribution was the project of partition. But even without
it, the distribution could stand, since it was in conformity with the
probated will of Bibiano, against the provisions whereof no
objection had been made.
“ /
” the land lies in whole or in part.
35
III. ESCHEAT
See annex E for “flowchart:
Escheat - a proceeding whereby the State, by virtue of its
sovereignty, steps in and claims the real or personal property of a
person who dies intestate leaving no heir.
A. When and by whom petition is filed
RULE 91, Section 1. When a person dies intestate, seized of real
or personal property in the Philippines, leaving no heir or person
by law entitled to the same, the Solicitor General or his
representative in behalf of the Republic of the Philippines, may file
a petition in the Court of First Instance of the province where the
deceased last resided or in which he had estate, if he resided out
of the Philippines, setting forth the facts, and praying that the
estate of the deceased be declared escheated.
When 1. When a person dies intestate
2. When a person is seized of real or personal
property in the Philippines, leaving no heir
or person by law entitled to the same
By whom Solicitor General or his representative, in behalf
of the Republic of the Philippines
Venue RTC of the province where the deceased:
1. Last resided, if he resided in the Philippines
2. Had estate, if he resided out of the
Philippines
Content of 1. Set forth the facts
petition 2. Pray that the estate of the deceased be
escheated
TAN v. CITY OF DAVAO (1997)
SUMMARY: Dominga was the registered owner of the subject lot.
She had 3 children (Vicenta, Mariano, and Luis). She and her family
left for China in 1923. In 1962, City of Davao instituted an escheat
proceeding over the subject lot, arguing that Dominga and her
family are presumed dead and that there are no heirs left to inherit
her estate. CFI declared the property escheated. CA affirmed CFI.
Vicenta appealed by certiorari with the SC, contending that the City
of Davao had no authority to commence an escheat proceeding for
it belongs the RP, through the SolGen (Rule 91, 1964 ROC). Court
held that the City of Davao has personality under Rule 92 of the
1940 ROC, which was the Rule in effect when the proceeding was
commenced. Finally, Court held that the courts are not barred from
declaring an absentee presumptively dead as an incident of, or
in connection with, an action or proceeding for the settlement of
the intestate estate of such absentee. In this case, the escheat
proceedings were, in effect, proceedings to settle Dominga’s
estate.
DOCTRINE: Rule 91, which provides that only the Republic of the
Philippines, through the Solicitor General, may commence escheat
proceedings, did not take effect until 1 January 1964. (Rule 91
cannot be made to apply to proceedings commenced prior to and
pending after said effectivity date if the application would not be
feasible or would work injustice.)
Other actions for escheat
RULE 91, Section 5. Until otherwise provided by law, actions for
reversion or escheat of properties alienated in violation of the
Constitution or of any statute shall be governed by this rule,
except that the action shall be instituted in the province where
Hence, a petition for escheat may be filed under 3 circumstances:
1. A person dies without a will and without heirs (Rule 91,
Section 1);
2. Reversion or escheat of properties alienated in violation
of the Constitution or any statute (Rule 91, Section 5);
3. Unclaimed balances in banks (Act No. 3936)
B. Requisites for filing of petition
1. A person died intestate.
2. He left no heirs or persons by law entitled to the
same.
3. He left properties.
C. Remedy of respondent against petition; period for
filing claim
RULE 91, Section 4. If a devisee, legatee, heir, widow,
widower, or other person entitled to such estate appears
and files a claim thereto with the court within 5 years from
the date of such judgment, such person shall have
possession of and title to the same, or if sold, the
municipality or city shall be accountable to him for the
proceeds, after deducting reasonable charges for the care
of the estate, but a claim not made within said time shall
be forever barred.
By whom Devisee, legatee, heir, widow, widower, or
claim to other person entitled to such estate
estate may
be filed
Period for Within 5 years from the date of judgment
filing claim declaring that the estate shall escheat
Remedies of heir if government initiates escheat
1. Participate in the proceeding; file a written
opposition/comment
2. File a motion to dismiss
3. File a petition to annul judgment
RP V. CA (2002)
SUMMARY: Elizabeth Hankins in her lifetime donated 2 parcels of
land to Amada Solano, her all-around personal domestic helper.
Solano initially misplaced the deeds. Meanwhile, RP filed a petition
for escheat which was granted by the RTC-Pasay. New TCTs were
issued in the name of Pasay City. Solano files a petition to annul
judgment before CA, claiming that she had already found the
deeds. She questions the jurisdiction of the RTC saying that since
the lands were already donated to her, they cannot be validly
escheated by RP. CA denied. SC affirmed CA. It held that the claim
of Solano has prescribed—it being filed beyond the 5 year limitation
under the rules. Also the burden is on the claimant to establish his
title to the property. Since the TCTs did not indicate any change of
ownership during the decedent’s lifetime, the lands still formed part
of her estate, at least before the escheat and the RTC had a right
not to assume otherwise.
“‘
” legal right to property, which he ought not, in equity and good
36
IV. TRUSTEES
See annex F for “flowchart”:
Trust – a confidence reposed in one person, called the trustee, for
the benefit of another called the cestui que trust, with respect to
property held by the former for the benefit of the latter.
Parties: Trustor, trustee (optional), beneficiary
DE LEON v. MOLO-PECKSON (1962)
SUMMARY: Molo, in a will, left his entire estate to his wife. The wife
donated almost all of her property in favor to Molo-Peckson and
Nable. Molo-Peckson and Nable executed a Mutual Agreement
recognizing that the lots should be sold at one peso each to certain
named beneficiaries, in conformity with the verbal wish of the late
Molo and wife. Thereafter, they revoked the Mutual Agreement.
Beneficiaries demanded the conveyance to them of the ten parcels
of land. Court ruled in favor of the beneficiaries and held (1) that
the document created an express trust in favor of the beneficiaries,
(2) that Molo-Peckson and Nable had no right to revoke it without
the consent of the cestui que trust, (3) that they must render an
accounting of the fruits of the lands, and (4) that they should free
said lands from all liens and encumbrances.
DOCTRINE: A declaration of trust is an act by which a person
acknowledges that the property, title to which he holds, is held by
him for the use of another. To establish a trust, the proof must be
clear, satisfactory, and convincing. Here, the document clearly and
unequivocally declares the existence of the trust even if the same
was executed subsequent to the death of the trustor. The right
creating or declaring a trust need not be contemporaneous or inter-
parties.
DE ROMERO v. CA (1999)
SUMMARY: Mother, together with her three daughters filed a
petition for the reconveyance of the property, alleging that Luterio
only held the same in trust. Court ruled in favor of Luterio.
Petitioners only alleged that Luterio held the property in trust but
were not able to adduce evidence to support their allegation.
Assuming arguendo that the agreement was indeed to hold it in
trust, such will also not be allowed since it would promote a direct
violation of the provisions of the Public Land Act as regards the
acquisition of a homestead patent.
DOCTRINES: A trust is the legal relationship between a person
having an equitable ownership in property and another person
owning the legal title to such property, the equitable ownership of
the former entitling him to performance of certain duties and the
exercise of certain powers by the latter.
• Trust relations between parties may be express or implied.
Express trusts are those which are created by the direct and
positive acts of the parties, by some writing or deed, or will, or by
words evidencing an intention to create a trust.
Implied trusts are those which without being express, are deducible
from the nature of the transaction as matters of intent, or which are
superinduced on the transaction by operation of law as a matter of
equity, independently of the particular intention of the parties.
Implied trusts may either be resulting or constructive trusts, both
coming into by operation of law.
Resulting trusts are based on the equitable doctrine that
valuable consideration and not legal title determines the
equitable title or interest and are presumed always to have
been contemplated by the parties. They arise from the nature
or circumstances of the consideration involved in a transaction
whereby one person thereby becomes invested with legal title
but is obligated in equity to hold his legal title for the benefit of
another.
Constructive trusts are created by the construction of equity in
order to satisfy the demands of justice and prevent unjust
enrichment. They arise contrary to intention against one who,
by fraud, duress or abuse of confidence, obtains or hold the
conscience, to hold.
• A trust will not be created when, for the purpose of evading the Purpose of To settle the estate of To carry into effect
law prohibiting one from taking or holding real property, he takes a appointment decedent the provisions of a
conveyance thereof in the name of a third person. will (testamentary
trust) or written
Trusts Only express trusts, either: instrument
covered by 1. Created by will (contractual trust)
Rule 98 2. Created by written instrument Bond Not exempted even if 1. When the
When/why To carry into effect the provisions of a will or exemption the will provides for testator has
appointed written instrument. exemption. directed or
Note: The proper court may, after due notice to Where the will requested such
all interested persons, appoint a trustee: exempts the executor exemption; or
 If the testator has omitted in his will to from filing a bond, a 2. When all
appoint a trustee in the Philippines, and if bond shall persons
such appointment is necessary to carry into nevertheless be filed beneficially
effect the will’s provisions (RULE 98, conditioned on the interested in
Section 2); or payment of the trust, of full
 When a trustee under a written instrument decedent’s debts. age, request
declines, resigns, dies, or is removed the exemption.
before the objects of the trust are Exemption may be
accomplished, and the instrument does not cancelled by the
provide for how such vacancy will be court at any time.
supplied (RULE 98, Section 3). When Upon payment of Upon turning over of
Venue  RTC in which the will is allowed; or terminated debts of the estate the property to the
 RTC of the province in which the property and distribution of beneficiary after
or some portion thereof affected by the property of the heirs trust has expired
trust is situated. Obligation to Must pay estate’s Not obligated to pay
Note: Petition may also be filed in the pay debts debts debts of
settlement proceedings of a decedent’s estate beneficiaries or
if the decedent willed that certain properties be trustor.
placed in trust.
B. Bond
A. Distinguished from executor/administrator
E/A Trustee General rule Trustee must file a bond.
Duties Fixed or limited by law Governed by the For exceptions, see table above.
intention of the Characteristics  Amount fixed by court.
trustor or the  Payable to the Government of the
parties, if Philippines.
established by
contract Effect of failure Considered as declining or resigning the
May cover a wider to file trust.
range than those of
E/A Conditions of the bond
Rendering of Not under oath Made under oath RULE 98, Section 6. The following conditions shall be deemed
account (except the initial and Filed annually to be a part of the bond whether written therein or not:
final accounts) (a) That the trustee will make and return to the court, at such
Filed only when court time as it may order, a true inventory of all the real and
requires personal estate belonging to him as trustee, which at the time
Acts of 1. If necessary for If necessary or of the making of such inventory shall have come to his
administration the purpose of expedient upon possession or knowledge;
[sell or paying debts, order of the court. (b) That he will manage and dispose of all such estate, and
encumber the expenses of Proceeds shall be faithfully discharge his trust in relation thereto, according to
property; for administration invested or applied law and the will of the testator or the provisions of the
E/A, add and legacies in such manner as instrument or order under which he is appointed;
“mortgage”] 2. For the will best effect the (c) That he will render upon oath at least once a year until his
preservation of objects of the trust. trust is fulfilled, unless he is excused therefrom in any year by
property if sale Procedure: the court, a true account of the property in his hands and of
will be beneficial On petition and the management and disposition thereof, and will render such
to heirs, legatees, after due notice and other accounts as the court may order;
or devisees, upon hearing (d) That at the expiration of his trust he will settle his accounts
application to in court and pay over and deliver all the estate remaining in
court with written his hands, or due from him on such settlement, to the person
notice to heirs or persons entitled thereto.
Procedure: But when the trustee is appointed as a successor to a prior
Upon application to trustee, the court may dispense with the making and return of
court and written an inventory, if one has already been filed, and in such case
notice to heirs the condition of the bond shall be deemed to be altered
Order of sale No time limit No time limit accordingly

37
 C. Requisites for the removal and resignation of a
trustee
RULE 98, Section 8. The proper Court of First Instance may,
upon petition of the parties beneficially interested and after
due notice to the trustee and hearing, remove a trustee if such
removal appears essential in the interests of the petitioners.
The court may also, after due notice to all persons interested,
remove a trustee who is insane or otherwise incapable of
discharging his trust or evidently unsuitable therefor. A
trustee, whether appointed by the court or under a written
instrument, may resign his trust if it appears to the court
proper to allow such resignation.
Requisites for removal of trustee:
1. Petition by parties beneficially interested
2. Due notice to the trustee
3. Hearing
4. Presence of any of the grounds for removal
Requisites for resignation of trustee:
1. Trustee, whether court-appointed or under a written
instrument, resigns.
2. It appears to the court proper to allow such resignation.
D. Grounds for removal of trustee
Grounds
1. Removal appears essential in the interests of the petitioners.
2. Trustee is insane.
3. Trustee is incapable of discharging his trust.
4. Trustee is evidently unsuitable.
LANDBANK V. CA (2003)
SUMMARY: MSI undertook to invest funds primarily in a portfolio of
certain specified securities for fixed periods of time, and to return
upon maturity the funds and income of the investors. Private
respondents were among those who bought securities of MSI.
Then, MSI and IBAA executed a custodian agreement wherein IBAA
became the custodian bank of the securities. LBP later succeeded
IBAA as the custodian bank through a contract of “Substitution of
Trustee with Assumption of Liabilities – making LBP the trustee of
the securities. Later on, MSI was placed under rehabilitation by the
SEC, and the Management Committee rejected the claims of
private respondents. Thus, private respondents demanded an
accounting against LBP but LBP refused claiming that they are
mere custodians and do not own the securities. The private
respondents filed a petition under Rule 98 for the removal of IBAA
and LBP as trustees and the appointment of Prudential Bank as
trustee.. The SC ruled that the proper remedy was an appeal under
Rule 45, and not rule 65 so the CA judgment had become final
executory.
DOCTRINE: According to the CA, because of the existence of a
trusteeship agreement, under Rule 98, Sections 8 and 9, the RTC
had jurisdiction over the petitions of the private respondents for
removal of trustees. The clear mandate of the Rules of Court (for
the CFI, now RTC) to entertain petitions for the removal of a trustee,
the doctrine of primary jurisdiction cannot be invoked as a pretext
to bar the petitioners from seeking judicial relief.
E. Extent of authority
1. Powers cannot extend beyond the territory of the Philippines.
2. In the execution of trusts, he is bound to comply with the
directions contained in the trust instrument.
38
V. ABSENTEES
See annex G for “flowchart:
A. Purpose of the rule
To enable the taking of the necessary precautions for
the administration of the estate of the absentee.
B. Who may file; when to file
Petition for appointment of provisional representative
RULE 107, Section 1. When a person disappears from his
domicile, his whereabouts being unknown, and without having
left an agent to administer his property, or the power conferred
upon the agent has expired, any interested party, relative or
friend, may petition the Court of First Instance of the place
where the absentee resided before his disappearance for the
appointment of a person to represent him provisionally in all
that may be necessary. In the City of Manila, the petition shall
be filed in the Juvenile and Domestic Relations Court.
Who 1. Any interested party
may file 2. Absentee’s relative
3. Absentee’s friend
Venue RTC where the absentee resided before his
disappearance
When it 1. A person disappears from his domicile;
may be 2. His whereabouts are unknown; AND
filed 3. He left no agent to administer his property OR
the agent’s power has expired.
Petition for declaration of absence
RULE 107, Section 2. After the lapse of two (2) years from his
disappearance and without any news about the absentee or
since the receipt of the last news, or of five (5) years in case
the absentee has left a person in charge of the administration
of his property, the declaration of his absence and
appointment of a trustee or administrator may be applied for
by any of the following:
(a) The spouse present;
(b) The heirs instituted in a will, who may present an authentic
copy of the same;
(c) The relatives who would succeed by the law of intestacy;
and
(d) Those who have over the property of the absentee some
right subordinated to the condition of his death.
NOTE There is no such thing as an independent action
for declaration of presumption of death. The
presumption may arise or be invoked in an
action or special proceeding.
Exception Petition for declaration of presumptive death for
purpose of remarriage.
Under Article 41 of the Family Code, the present
spouse must file a summary proceeding for
declaration of presumptive death of the
absentee, without prejudice to the latter’s
reappearance.
Ratio of To protect the present spouse from criminal
Art. 41 prosecution for bigamy.
 RP v. NOLASCO (1993)
SUMMARY: Nolasco filed a petition for the declaration of
presumptive death of his wife, as the latter disappeared after the
birth of their son. He cited several efforts to look for his wife: looked Who may be appointed (RULE 107, Section 7)
for her in England, sent her letters, asked their friends etc. Court Provisional  Spouse present is preferred when
held that he failed to conduct a search for his wife with such representative in there is no legal separation
diligence as to give rise to a “well-founded belief” that she is dead. a petition for  Any competent person may be
His investigation was sketchy, he could not explain the loss of the appointment of appointed if the absentee left no
alleged letters he sent to his wife which were returned to him, he absentee’s spouse, or if the spouse present is a
did not identify the friends he inquired his wife’s whereabouts from, representative minor or incompetent.
and he failed to explain why he did not even try to get help from the
police or other authorities in London.
Trustee or  Spouse present is preferred where
TOL-NOQUERA v. VILLASOR (1992) administrator in there is no legal separation.
SUMMARY: Petitioner Maria-Tol alleged that she was the a case of  Any competent person may be
acknowledged natural child of Remigio Tol, missing since 1984. declaration of appointed if the absentee left no
She sought administration of his estate, claiming that a certain absence spouse, or if the spouse present is a
Diosdado fraudulently secured title to one of Remigio’s properties. minor or incompetent.
TC dismissed petition as it was a collateral attack on a Torrens title.
Court held that the petition was not a collateral attack on a Torrens
title. The alleged fraudulent issuance of title was mentioned as a Termination of administration
justification for her appointment as administrator. Re: arguments RULE 107, Section 8. The trusteeship or administration of the
that the petitioner cannot inherit ab intestato from the legitimate property of the absentee shall cease upon order of the court in
parents of the absentee is immaterial  her disqualification as an any of the following cases:
heir to her supposed grandparents does not inhibit her from (a) When the absentee appears personally or by means of an
petitioning for a declaration of absence or to be appointed as an agent;
administratrix of the absentee's estate. (b) When the death of the absentee is proved and his testate or
DOCTRINE: It is not necessary that a declaration of absence be intestate heirs appear;
made in a proceeding separate from and prior to a petition for (c) When a third person appears, showing by a proper
administration. The question of whether the administrator may document that he has acquired the absentee's property by
inherit the property to be administered is not controlling. What is purchase or other title.
material is whether she is one of those allowed by law to seek the In these cases, the trustee or administrator shall cease in the
declaration of absence of Remigio Tol and whether she is performance of his office, and the property shall be placed at
competent to be appointed as administratrix of his estate. the disposal of those who may have a right thereto.

When petition is proper

Period of Consequence
absence
2 years  Petition for appointment of representative
under Rule 107, except if the absentee left
an administrator to manage his property
 Present spouse may remarry if the
circumstances in (1) below are present.
4 years (1) Presumed dead for all purposes, including
succession:
 A person on board a vessel lost during a
sea voyage, or an aeroplane which is
missing;
 A person in the armed forces who has
taken part in war;
 A person who has been in danger of
death under other circumstances
(2) Present spouse may re-marry.
5 years  Petition for declaration of absence under
Rule 107
 Presumed dead for all purposes, including
the opening of succession, if the absentee
disappeared after the age of 75 years old
7 years  Presumed dead for all purposes, except for
the purpose of succession
10 years  Presumed dead for purpose of opening “ ’ ’
absentee’s succession

PART THREE: RULES ON FAMILY RELATIONS

39
VI. DECLARATION OF ABSOLUTE NULLITY OF VOID
MARRIAGES AND ANNULMENT OF VOIDABLE
MARRIAGES
Please see Annex H for table form of A.M. No. 02-11-10-SC.

VII. LEGAL SEPARATION

Please see Annex I for table form of A.M. No. 02-11-11-SC.

No defaults allowed
RULE 9, Section 1 (e) Where no defaults allowed. - If the
defending party in an action for annulment or declaration of
nullity of marriage or for legal separation fails to answer, the
court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists, and if
there is no collusion, to intervene for the State in order to see
to it that the evidence submitted is not fabricated.

No judgment on the pleadings

RULE 34, Section 1. Where an answer fails to tender an issue,
or otherwise admits the material allegations of the adverse
party’s pleading, the court may, on motion of that party, direct
judgment on such pleading. However, in actions for declaration
of nullity or annulment of marriage or for legal separation, the
material facts alleged in the complaint shall always be proved.

Class discussion:
Jurisdiction Always RTC
Who should always participate? Solicitor General
and Investigating
Prosecutor
Are proceedings confidential? Yes
Can court exclude the public? Yes
If I want to disinherit my erring spouse
but none of the grounds have been
committed, how do I disinherit him?

Please see A.M. No. 02-11-12-SC (Rules on Provisional Order).

“‘ -
-

40
PART FOUR: RULES ON FAMILY WELFARE
VII. GUARDIANSHIP
See annex. J
Guardianship – trust relation in which a person called a “guardian”
acts for another called a “ward” whom the law regards as incapable
of managing his own affairs, designed to further the latter’s well-
being.
Basis State as parens patriae
Purpose  To safeguard the rights and interests of minors
and incompetent persons
 To further the ward’s well-being
 To preserve the ward’s property
 To render any assistance that the ward may
personally require
PARCO v. CA (1982)
SUMMARY: Special Proceedings NO. 2641, a guardianship
proceedings for the incompetent Soledad, originally pertained to
Branch I of the CFI of Quezon. Later, Branch IV took cognizance of
the case. Respondent Francisco (the guardian of Soledad) sought
to reconvey three lots that he sold to Petitioners Parco and
Bautista. He alleged that they were in danger of being lost,
squandered, concealed, and embezzled by the Petitioners. Before
Branch IV could decide on that issue, Branch I reasserted its
cognizance over the case. Branch IV ordered the records of the
case be transferred to Branch I. BUT Branch IV still rendered actions
in relation to the Special Proceeding, to which Petitioners objected
Court held that Branch I did not have the authority to render those
actions. As regards the authority of Branch I to order the
reconveyance, the court held that Jurisdiction of the court in
guardianship proceedings, ordinarily, is to cite persons suspected
of having embezzled, concealed, or conveyed the property
belonging to the ward for the purpose of obtaining information
which may be used in an action later to be instituted by the
guardian to protect the right of the ward.
DOCTRINE: Generally, the guardianship court exercising special
and limited jurisdiction cannot actually order the delivery of the
property of the ward found to be embezzled, concealed, or
conveyed. Only in extreme cases, where property clearly belongs to
the ward or where his title thereto has been already judicially
decided, may the court direct its delivery to the guardian. There can
only be delivery or return of such property where the right or title of
said ward is clear and undisputable.
PACIENTE v. DACUYCUY (1982)
SUMMARY: Leonardo Homeres died. His wife (Lilia) and his 2 minor
children inherited a land in Tacloban. Lilia sold the lot to Dumdum.
Lilia then filed a Petition for Guardianship over the persons and
estate of the minors. Guardianship was granted. Dumdum then
sold the lot to Paciente, who then mortgaged the same to CBTC.
The Register of Deeds then informed the guardianship court that
the lot was registered in the name of Paciente without court
approval. JDRC issued 2 orders: first, requiring Paciente and
Dumdum to give P10K to the clerk of court as additional
consideration for the lot, and second, cancelling the TCT for their
failure to deliver the P10K. Paciente challenges guardianship
court’s jurisdiction to cancel the Torrens title. SC upholds JDRC
jurisdiction. Since the right or title of the two minors to the property
is clear and indisputable, there is no need for separate proceedings
to cancel the TCT. They inherited a part of the land in question from
their father. The sale of this land, where they are co-owners, by their
mother without the authority of the guardianship court is illegal.
Guardianship court did not exceed its jurisdiction but merely
exercised its duty to protect persons under disability. For lack of a
41
hearing on the price and time frame for paying the additional
consideration, the first order is actually null and void. However, the
second order superceded the first.
DOCTRINE: GEN RULE: where title to any property said to be
embezzled, concealed or conveyed is in question, the
determination of said title or right whether in favor of the ward or in
favor of the person said to have embezzled, concealed or conveyed,
the property must be determined in a separate ordinary action and
not in guardianship proceedings. EXCEPTION: If the right or title of
the ward to the property is clear and indisputable the court may
issue an order directing its delivery or return.
Three kinds of guardians
Legal guardian Guardian by provision of law without the
need for judicial appointment (i.e. parent)
Guardian ad Competent person appointed by the court
litem for purposes of a particular action or
proceeding involving a minor or incompetent
Judicial guardian Person appointed by the court for the
person, property, or both of the ward to
represent the latter in all acts and litigations.
BADILLO v. FERRER (1987)
SUMMARY: Macario Badillo died intestate survived by his widow,
Clarita and 5 minor children. He left a parcel of land, with a house
erected there, valued at P7,500. Each of the minors inherited a
1/12 share of it—P625 each, which is less than the P2,000
mentioned in CC Art. 320. Jan. 18, 1967, Clarita in her own behalf
and as natural guardian of the minors, executed a Deed of
Extrajudicial Partition and Sale of the property to the spouses
Soromero and Rana. Nov. 11, 1968: Modesta (a sister of Macario)
was able to obtain guardianship over the persons and properties of
the minors. Modesta caused the minors to file a complaint for the
annulment of the sale of their participation in the property, and,
conceding the validity of the sale of Clarita’s participation in the
property, they asked that, as co-owners, they be allowed to exercise
the right of legal redemption. SC: Spouses and Rana ordered to
restore to the minors the full ownership and possession of their
5/12 share in the undivided property. The spouses and Rana’s
ownership over the remaining 7/12 share is confirmed.
DOCTRINE: Rule 93, Sec. 7, of the RoC automatically designates
the parent as the legal guardian of the child without need of any
judicial appointment in case the latter's property does not exceed
P2,000. The period fixed for legal redemption will also run against
a minor co-owner whose property is valued no more than P2,000
and who is merely represented by his parent with no judicial
appointment as a guardian because according to Rule 93, Sec. 7,
the parent in this situation is automatically the child's legal
guardian. However, the parent-guardian must first be served with a
notice in writing of the sale of an undivided portion of the property
by the vendor in order that the period for redemption may begin to
accrue.
Governing Rules
Rules 92-97 of the Rules of Incompetent persons
Court
A.M. No. 03-02-05-SC (1 May Minors
2003)
 A. General powers and duties of guardians incapacitated or incompetent to give consent. Spouse Ernesto is an
“incompetent", being in comatose, without motor and mental
1. Care and custody of the person of the ward; management of faculties. Even assuming FC Art. 124 applied, she would have
his estate, or both assumed the duties of a guardian under the ROC. Thus, she should
2. Payment of the ward’s just debts out of his personal estate have observed the requirements for sale of ward’s estate,
and the income of his real estate, if sufficient particularly NOTICE to the incapacitated. Sale of the land is void.
3. Settle accounts, collect debts, and appear in actions of the
ward GOYENA v. LEDESMA-GUSTILO (2003)
4. Manage the estate frugally and apply proceeds to the ward’s SUMMARY: Amparo filed a petition to be appointed as guardian to
maintenance her incapacitated sister and her properties. The
5. Join in partition proceedings after hearing petitioner/oppositor, a close friend of the ward claimed that
6. Render to the court an inventory within 3 months after his Amparo’s intent in instituting the guardianship proceedings is to
appointment and annually after such appointment, which take control of Julieta’s properties and use them for her own
must be under oath benefit. RTC & CA granted petition appointing Amparo as guardian.
7. Render account to the court after 1 year from his appointment SC ruled that issues raised before the Court are questions of fact
and as often thereafter as may be required. and the findings of the lower courts wrt guardianship should not be
disturbed unless there is grievous error. No error here. Petitioner’s
assertion is purely speculative and finds no support from the
B. Conditions of the bond of guardians records. The letters presented does not prove an antagonistic
relationship.
1. Make and submit an inventory of all property of the ward which
shall come to his possession or knowledge
2. Faithfully execute the duties of his trust, manage and dispose
of the property for the best interests of the ward, to provide for
his proper care, custody, and education
3. Render a true and just account of all property of the ward in
his hands, and of all proceeds or interest derived therefrom,
and of the management and disposition of the same; at the
expiration of this trust, to settle his accounts with the court and
deliver and pay over all the property, effects, and monies
remaining in his hands, or due from him, to the person lawfully
entitled thereto
4. Perform all orders of the court and such other duties as may
be required by law.

C. Grounds for removal or resignation

1. Insane
2. Incapable of discharging his trust
3. Unsuitable
4. Wasted or mismanaged the estate
5. Failed for 30 days after it is due to render an account or make
a return.

Distinction between Rules on Guardianship over Incompetent

Persons and Rules on Guardianship over Minors
See annex L

D. Sale or encumbrance of property of ward (Rule 95)

See annex K

UY v. JARDALEZA (2000)
SUMMARY: Case arose following the stroke and comatose of Dr.
Ernesto Jardeleza. His son Teodoro filed a petition for guardianship
of his father. A few days later, his wife Gilda, pursuant to Art. FC
124, filed a petition for the assumption of sole powers of
administration over the conjugal properties, and authorization to
sell a certain parcel of land (where the clinic of Ernesto is found).
Teodoro filed an MR on the ground that what Gilda filed was
essentially a petition for guardianship, thus should have followed
the rules governing the special proceedings thereof, particularly the
procedural due process requirements. Pending the MR, the parcel
of land was sold. RTC denied Teodoro’s MR and approved the sale.
CA reversed. SC affirmed CA. FC Art. 124 contemplates a situation
where the spouse is absent, or separated in fact or has abandoned
the other or consent is withheld or cannot be obtained. Such rules
do not apply to cases where the non-consenting spouse is
42
IX. ADOPTION petition, acquired a vested right which could not be affected by the
subsequent enactment of a new law disqualifying him.
Nature In rem proceeding. The res is the personal status
of the parties REPUBLIC v. TOLEDANO (1994)
Purpose Promote the welfare of the child, and enhance of SUMMARY: Sps Clouse are aliens who want to adopt Solomon
his opportunities for a useful and happy life (Evelyn Clouse’s younger brother). Court held that they cannot
Not only to establish relationship of paternity and adopt because: Alvin Clouse is not a former Filipino citizen but a
filiation, but to endow the child with legitimate natural born citizen of USA; Solomon is neither his relative by
status consanguinity nor the legitimate child of his spouse, and Sps
Laws on Clouse jointly filed the petition to adopt Solomon when Evelyn was
 Domestic Adoption Act (R.A. No. 8552)
adoption no longer a Filipino citizen (Feb 1990). Evelyn Clouse may appear
 Inter-Country Adoption Act (R.A. No. 8043) to qualify pursuant to par. 3(a) of Art. 184. She was a former Filipino
 Family Code citizen and she sought to adopt her younger brother. Unfortunately,
the petition for adoption cannot be granted in her favor alone
AM No. 02-6-02-SC (22 August 2012) Rules on Adoption (repealed without violating Art. 185, which mandates a joint adoption by the
Rules 99-100) husband and wife.
Objectives of the Rule LANDINGIN v. RP (2006)
1. The paramount consideration in all matters relating to his SUMMARY: Diwata Landingin (57, widow, US citizen, Filipino
care, custody, and adoption is the best interest of the parentage, resident of Guam) filed a petition for adoption of her
child. nieces and nephew. They were children of her brother who passed
2. The State shall provide alternative protection and away when they were little and their biological mother left them
assistance through foster care or adoption for every child after his passing and now has a second family in Italy. The court
who is a foundling, neglected, orphaned, or abandoned. ordered DSWD to submit a report. Pending the proceedings, the
mother was on vacation in the Phils, thus, DSWD was able to
Rules on Venue interview her. The report submitted to the court stated that the
Venue Court Basis mother consented (and other positive findings), thus, it
Domestic Where the Family Court of the Section recommended the approval of the adoption. RTC granted. CA and
prospective province or city 6 SC reversed. (1) Written consent of the biological parent is required
adoptive by RA 8552, and in accordance with the policy of not only protecting
parents reside the best interests of the child but also respecting the right of the
Rescission Where the Family Court of the Section natural parent. None was submitted here. ‘Abandonment’ may
adoptee resides province or city 20 dispense with this requirement but it was not proven since the
Inter- Where the Family Court or Section DSWD report stated that the eldest child communicated with the
Country adoptee resides Inter-Country 28 mother when consulting re serious problems, and that the mother
or may be found Adoption Board gave some financial support. (2) The Affidavit of Consent of
Landingin’s own children notarized in Guam was inadmissible in
Persons to be notified evidence for lack of authentication by the ambassador, minister,
Domestic  Office of the Solicitor General through the etc. consular agent of the Philippines. Even if considered a private
provincial or city prosecutor document it was not properly authenticated as such. (3) Landingin
 DSWD did not prove that she by herself was financially stable. Ability to
 Biological parents of the adoptee, if support the adoptees is personal to the adopter, as adoption only
known creates a legal relation between the former and the latter.
Rescission Adopter
Inter-Country Biological parents
IN RE: LIM (2009)
A. Distinguish domestic from inter-country adoption SUMMARY: Monina, married to Olario, decided to adopt Michelle
See annex N. and Michael Lim by availing of the amnesty given under RA 8552
to those individuals who simulated the birth of a child. She filed a
IN RE: BLANCAFLOR (1964) petition. At the time of the filing of the petition, both children are
SUMMARY: Juvenile and Domestic Relations Court denied adoption already emancipated. Michelle, Michael and Olario gave consent to
of natural minor child of petitioner wife because her husband- the adoption. RTC dismissed the petitions. Since Monina had
adopter, who is Danish, cannot grant Danish citizenship to the remarried, she should have filed the petition jointly with her
child. Court held that there is no such requirement; Civil Code in husband. Court upheld the RTC based on Sec 7, Art. III of RA 8552.
force (Article 335) only disqualifies from being adopters those Petitioner, having remarried at the time the petitions for adoption
aliens that are either (a) nonresidents or (b) who are residents but were filed, must jointly adopt. Also, Monina does not fall under any
the Republic of the Philippines has broken diplomatic relations with of the three exceptions enumerated in Section 7. Court cannot
their government. make its own legislation to suit Monina’s case. Monina, being
married at the time the petitions for adoption were filed, should
RP v. MILLER (1999) have jointly filed the petitions with her husband.
SUMMARY: Sps. Miller, both American citizens, filed a petition to DOCTRINE: The use of the word "shall" in the provision means that
adopt Michael Magno Madayag. SolGen opposed, alleging that joint adoption by the husband and the wife is mandatory. This is in
there was a prohibition under the Family Code, effective on August consonance with the concept of joint parental authority over the
3, 1988. Court held that the petition for adoption was filed on July child which is the ideal situation. The rule insures harmony between
29, 1988, under the provision of the Child and Youth Welfare Code the spouses. The law is clear. There is no room for ambiguity.
which allowed aliens to adopt.
DOCTRINE: An alien qualified to adopt under the Child and Youth
Welfare Code, which was in force at the time of the filing of the

43
 B. Domestic Adoption Act (R.A. No. 8552)
See Annex M.
1. Effects of adoption
a. All legal ties between the biological parent(s) and adoptee are
severed, except when the biological parent is the spouse of the
adopter.
i. Parental authority of the biological parents shall
terminate and be vested in the adopters.
ii. If the adopter is the spouse of the biological parent,
parental authority shall be exercised jointly by both
spouses.
iii. Adopted shall remain an intestate heir of his parents and
other blood relatives.
b. Adopted shall be deemed to be a legitimate child of the
adopters, with all the rights of a legitimate child, such as:
i. To bear the surname of the father and the mother
ii. To receive support from their parents
iii. To be entitled to the legitime and other successional
rights. (Note that if the adoptee and his/her biological
parent had left a will, the law on testamentary succession
governs)
Conversely, the adoptive parents shall enjoy all the benefits to
which biological parents are entitled.
c. The adopted and the adopters shall acquire reciprocal rights
and obligations arising from the relationship of parents and
child, such as:
i. The right of adopter to choose to name the child
ii. The right of the adopter and adoptee to be legal and
compulsory heirs of each other.
IN RE: GARCIA (2005)
SUMMARY: Honorato Catindig filed a petition to adopt his minor
illegitimate child. He also prayed that the child be allowed to use
the surname of the mother (Garcia) as middle name. Trial court
allowed the adoption but deemed that the child shall be named
Stephanie Nathy Catindig. Honorato appealed. Court held that the
use of the surname of the mother as middle name of the child is
consistent with the intent of the Family Code Committee, with
Filipino customs, and is beneficial for the child since she remains
to be an intestate heir of the mother and it erases the stigma of
illegitimacy.
SAYSON v. CA (1992)
SUMMARY: This case concerns a dispute as to the successional
rights of the heirs of the Spouses Eleno and Rafaela Sayson, and
the Spouses Teodoro Sayson and Isabel Bautista. Petitioners are
the children of Eleno and Rafaela, while respondents (Delia,
Edmundo, and Doribel) claim to be the grandchildren of Eleno and
Rafaela. Delia and Edmundo were adopted children of Teodoro and
Isabel, while Doribel was a legitimate daughter. RTC held that Delia,
Edmundo, and Doribel are the EXCLUSIVE heirs of Teodoro and
Isabel, and that the 3 of them were also entitled to inherit from their
grandparents, Eleno and Rafaela, by right of representation1. CA
affirmed with the modification that only Doribel would be entitled to
inherit from the grandparents. SC affirmed the CA in toto, holding
that Delia and Edmundo, being adopted children, were strangers to
the grandparents. As to the legality of the adoption of Delia and
Edmundo, the SC held that it was too late for the petitioners to
challenge the decree of adoption, years after it became final and
executory (way back in 1967). Assuming that the petitioners were
proper parties, what they should have done was seasonably appeal
the decree of adoption, pointing to the birth of Doribel that
disqualified Teodoro and Isabel from adopting Delia and Edmundo.
They did not. In fact, they should have done this earlier, before the
44
decree of adoption was issued. They did not, although Teodoro’s
brother Mauricio claimed he had personal knowledge of such birth.
Also, their challenge to the validity of the adoption cannot be made
collaterally, as in their action for partition, but in a direct proceeding
frontally addressing the issue.
DOCTRINE: While it is true that the adopted child shall be deemed
to be a legitimate child and have the same rights as the latter, these
rights do not include the right of representation. The relationship
created by the adoption is between only the adopting parents and
the adopted child and does not extend to the blood relatives of
either party.
2. Instances when adoption may be rescinded
a. Repeated physical and verbal maltreatment by the adopter
despite having undergone counseling
b. Attempt on the life of the adoptee
c. Sexual assault or violence
d. Abandonment or failure to comply with parental obligations
Who may file a petition for rescission
a. The adopted who is at least 18 years of age
b. The adopted child who is still a minor, with the assistance of
the DSWD
c. The legal guardian or counsel id the adopted is over 18 years
of age but is incapacitated.
3. Effects of rescission of adoption
a. Parental authority of the biological parent of the adoptee, if
known, or the legal custody of the DSWD is restored if the
adoptee is still a minor or incapacitated.
b. Reciprocal rights and obligations of the adopter and adoptee
to each other are extinguished.
c. Succession rights revert to their status prior to adoption, as of
the date of judgment of rescission, but vested rights acquired
prior to rescission are to be respected.
d. Court shall order the adoptee to use the name stated in the
original birth or foundling certificate.
e. Court shall order the Civil Registrar where the adoption decree
was registered to cancel the new birth certificate of the
adoptee and reinstate the original birth or foundling certificate.
C. Inter-Country Adoption (R.A. No. 8043)
See annex O.
1. When allowed
R.A. No. 8043, Section 7. Inter-Country Adoption as the Last
Resort. – The Board shall ensure that all possibilities for
adoption of the child under the Family Code have been
exhausted and that inter-country adoption is in the best interest
of the child. Towards this end, the Board shall set up the
guidelines to ensure that steps will be taken to place the child in
the Philippines before the child is placed for inter-country
adoption: Provided, however, That the maximum number that
may be allowed for foreign adoption shall not exceed 600 a year
for the first five years.
Inter-country adoption of Filipino children by foreign nationals and
Filipino citizens permanently residing abroad is allowed by law if
such children cannot be adopted by qualified Filipino citizens or
aliens.
 2. Functions of the Family Court X. CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN
RELATION TO CUSTODY OF MINORS
a. Receive the application; Please see A.M. No. 03-04-04-SC.
b. Assess the qualification of the prospective adopter; and
c. Refer its findings, if favorable, to the Inter-Country Adoption What to file Verified petition for the rightful custody of a
Board. minor
(Note that the Board may receive the original application) Who may file Any person claiming such right
Where to file Family Court of the province or city where the
3. “Best interest of the minor” standard petitioner resides or where the minor may be
found.
Inter-country adoption is allowed only when the same shall prove
beneficial to the child’s interests, and shall serve and protect If there are no Family Courts, with regular
his/her fundamental rights. appropriate courts.
Enforceability Within its judicial region to which the Family
of writ Court belongs
Jurisdiction of THE FAMILY COURTS ACT OF 1997 HAS NOT
SC and CA to DIVESTED SC AND CA OF THEIR JURISDICTION
issue writ TO ISSUE WRITS OF HABEAS CORPUS
INVOLVING CUSTODY OF CHILDREN.

Enforceability: Anywhere in the Philippines

Interim reliefs Temporary visitation rights
Hold Departure Order
Protection Order

PABLO-GUALBERTO v. GUALBERTO (2005)

SUMMARY: Crisanto Gualberto filed a petition for declaration of
nullity of his marriage to Joycelyn Pablo-Gualberto with ancillary
prayer for custody pendente lite of their almost 4-y.o. son, Rafaello,
allegedly taken by Joycelyn from the conjugal home and from his
school when she abandoned Crisanto. Surveillance of Joycelyn
commissioned by Crisanto revealed that she was having lesbian
relations with a certain Noreen Gay Cuidadano. RTC initially
awarded Crisanto custody pendente lite. RTC later reversed itself,
awarding custody to Joycelyn (with Crisanto’s right to visit the child),
citing FC 213 (tender-age presumption). CA reversed and ordered
that Rafaello be turned over to Crisanto pending resolution of
Joycelyn’s Motion to lift the award of custody pendente lite. Before
the SC, Crisanto also raised the issue of granting the ancillary
remedy of habeas corpus (among others). Court held that Joycelyn
should have custody of Rafaello; denied habeas corpus. It was not
enough for Crisanto to show merely that Joycelyn was a lesbian. He
must also demonstrate that she carried on her purported
relationship with a person of the same sex in the presence of their
son or under circumstances not conducive to the child’s proper
moral development. Because Joycelyn has the right to keep her
minor son in her custody, the writ of habeas corpus was denied.
DOCTRINE: The “tender-age presumption” under FC 213 may be
overcome only by compelling evidence of the mother’s unfitness
(ex.: neglect, abandonment, unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity or
affliction with a communicable disease). Sexual preference or
moral laxity alone does not prove parental neglect or
incompetence. To deprive the wife of custody, the husband must
clearly establish that her moral lapses have had an adverse effect
on the welfare of the child or have distracted the offending spouse
from exercising proper parental care.
A writ of habeas corpus may be issued only when the “rightful
custody of any person is withheld from the person entitled thereto,”
a situation that does not apply here. The award of temporary
custody, as the term implies, is provisional and subject to change
as circumstances may warrant. Even the award of child custody
after a judgment on a marriage annulment is not permanent; it may
be reexamined and adjusted if and when the parent who was given
custody becomes unfit.

’ ‘
’ ’ “ ’ ’ ”
45
XI. COMMITMENT OF CHILDREN XII. JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF
Please see A.M. No. 02-1-19-SC. MINOR CHILDREN
cf. HOSPITALIZATION OF INSANE PERSONS (RULE 101) Application of Where judicial approval of voluntary
Who may Director of Health Rule 105 recognition of a minor natural children is
file required
Provincial fiscal (or city fiscal in City of Manila) shall When judicial Only where filiation is proved by:
prepare the petition for the Director and represent approval is 1. Open and continuous possession of
him in court in all proceedings. required (FC status of a legitimate child, or
Where to RTC of the province where the person alleged to be 172, par. 2) 2. By any other means allowed by the ROC
file insane is found and special laws.
When it In cases where, in the opinion of the Director, such When judicial Where recognition is made in:
may be commitment is for the public welfare, or for the approval is not 1. Record of birth
filed welfare of said person who, in his judgment, is required (FC 2. A final judgment
insane and such person or the one having charge 172, par. 1) 3. Ad admission in a public instrument
of him is opposed to his being taken to a hospital 4. A private handwritten instrument
or other place for the insane. signed by the parent concerned.
Order for Fix the date of hearing.
hearing Voluntary vis-à-vis compulsory recognition (Gapusan-Chua v. CA)
Service of  On the allegedly insane person Voluntary Compulsory
order for Admission of the fact of Also called judicial
hearing  On the person having charge of him, or paternity/maternity by the recognition.
presumed parent, expressed
 On such relatives residing in the province or in the form prescribed. Recognition decreed by final
city judgment of a competent
court.
As the judge may deem proper.
Contents of petition 1. Jurisdictional facts
Hearing Allegedly insane person must be there, if possible.
2. Names and residences of the
parents, or either of them, who
It must be proven that:
acknowledged the child, and their
 Commitment is for the public welfare or for the
compulsory heirs, and the person(s)
welfare of the insane person with whom the child lives
3. Fact that the recognition made took
 His relatives are unable for any reason to take
place in a statement before a court
proper custody and care of him. of record or in an authentic writing
(attach a copy thereof to petition)
Judgment Court shall:
Who may file; when Child (legitimate or not); during his
 Order his commitment to such hospital or (FC 173, FC 175) lifetime
other place for the insane, as may be Child’s heirs, should the child die during
recommended by the Director of Health. minority or in a state of insanity; 5 years
 Make proper provisions for the custody of Note: if action is based on FC 172, par.
property or money of the insane until a 2 (open and continuous possession; any
guardian be properly appointed. other means allowed by ROC/laws), it
must be brought during the lifetime of
Discharge Director may file a proper petition with the court the alleged parent.
of insane which ordered the commitment when he opines Parties impleaded Alleged parent(s)
that the committed person: Alleged parent(s)’ compulsory heirs
 is temporarily or permanently cured Order for hearing Fix the date and place. Hearing shall not
be more than 6 months after the entry
 May be released without danger. of order.
Service of order Upon all interested parties
Personally or by mail
Publication of order Once a week for 3 consecutive weeks
Opposition Any interested party
Within 15 days from service or last day
of publication of order
Hearing
Judgment Court must be satisfied that:
1. The recognition was willingly and
voluntarily made
2. The recognition is for the best
interest of the child.
Service of judgment Civil registrar would then be obliged to
upon civil registrar enter the judgment in the register.
‘
46
 GAPUSAN-CHUA v. CA (1990) XIII. CONSTITUTION OF FAMILY HOME
SUMMARY: Ligaya filed a petition for the settlement of the estate
of Felisa for the issuance of LA in her favor, claiming that she is RULE 106 is deemed repealed by the Family Code.
Felisa’s acknowledged natural daughter. Ligaya presented There is no need to constitute a family home judicially or
authentic writings made by Felisa, which prove Felisa’s recognition extrajudicially.
of Ligaya as her daughter. Oppositor/MR-filer Prospero, Felisa’s
surviving spouse, stated that these authentic writings provide mere The family home, constituted jointly by the husband and the wife or
grounds to compel recognition, which should have been made by an unmarried head of a family, is the dwelling house where they
during the lifetime of Felisa (CC 285). Court held that the "authentic and their family reside, and the land on which it is situated. It is
writings" effectively operated as a recognition of Ligaya as her DEEMED CONSTITUTED on a house and lot from the time it is
natural child, even if no action was brought by the latter to compel occupied as a family residence. (FC 152, 153)
Felisa, during her lifetime, to recognize her as such. Whether or not
she was of age at the time of voluntary recognition, judicial approval What may be  Must be part of the ACP, CPG, or of the
was found unnecessary here in view of the surrounding facts: If she constituted as a exclusive properties of either spouse
was of age, then judicial approval was clearly unnecessary because family home with the latter’s consent.
she consented, which could be given expressly or tacitly. If she was  If constituted by an unmarried head of
a minor, absence of judicial approval was cured by her ratification a family, on his or her own property.
when she filed the petition for settlement of estate and claimed
that she was Felisa’s acknowledged natural child. Note: Property subject of a conditional sale
DOCTRINE: The requirement of judicial approval is for the benefit on installments may be constituted as a
of the minor. It is for the protection of the minor against any family home, if ownership is reserved by
acknowledgement made to her prejudice. vendor only to guarantee payment.
 Lack of judicial approval cannot impede the effectivity of the Actual value  Shall not exceed, at the time of
acknowledgment made. constitution, P300,000 in urban areas,
 Lack of judicial approval is not a defect available to the and P200,000 in rural areas
recognizing parent but one which the minor may raise or
waive. Urban areas – chartered cities,
 If after reaching the age of majority, the minor consents to municipalities with annual income at least
the acknowledgment, the lack of judicial approval should equal to that required of chartered cities.
make no difference. Written consent  Person constituting it
required before  His/her spouse, and
family home may  Majority of the beneficiaries of legal
be sold, age.
alienated,
donated, Court shall decide in case of conflict.
assigned, or
encumbered by
owner(s)
Effect of death of Family home shall continue for:
one or both  10 years, or
spouses, or of  As long as there is a minor beneficiary
the unmarried
head Heirs cannot partition unless the court finds
compelling reason therefor.
Number of For purposes of availing of the benefits, only
homes a person ONE.
may constitute or
be a beneficiary
of

Family home and exemption from execution

FAMILY CODE, Article 155. The family home shall be exempt
from execution, forced sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of the family
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, material men and others who have rendered
service or furnished material for the construction of
the building.

MODEQUILLO v. BREVA (1990)

SUMMARY: RTC ordered execution of a final and executory
’ ’ judgment against Modequillo and Malubay thru a writ of execution.
The sheriff levied on a parcel of residential land and a parcel of
agricultural land in Davao del Sur, both registered in the name of
47
Modequillo. Modequillo filed a motion to quash on the ground that
the residential land was where the family home was constituted
and hence exempt from execution under FC 152 and 153 Court
ruled that the land is deemed constituted as a family home only
upon the effectivity of the Family Code on August 3, 1988 not
August 4, one year after its publication in the Manila Chronicle on
August 4, 1987 (1988 being a leap year). Art 162 of the Family
Code only means that all existing family residences at the time of
the effectivity of the Family Code, are considered family homes and
are prospectively entitled to the benefits accorded to a family home
under the Family Code. Article 162 does not state that the
provisions of Chapter 2, Title V have a retroactive effect. Not being
one among those exempt from execution, the motion to quash was
properly dismissed.

Rules on constitution of family homes for purposes of exemption

from execution; effectivity
Family residences constructed Must be constituted as a
before the effectivity of the FC family home either judicially or
(3 August 1988) extrajudicially in accordance
with the provisions of the CC.
Family residences constructed Automatically deemed to be
after the effectivity of the FC family homes and thus exempt
from execution from the time it
was constituted and lasts as
long as any of its beneficiaries
actually resides therein.
Family residences which were Considered as family homes
not judicially or extrajudicially by operation of law and are
constituted as a family home prospectively entitled to the
prior to the effectivity of the benefits accorded to a family
FC, but were existing home under the FC.
thereafter

SPS. DE MESA v. ACERO (2012)

SUMMARY: Having failed to set up and prove to the sheriff that
supposed exemption of the family residence before the sale thereof
at public auction, Sps. De Mesa are now barred from raising the
same. Failure to do so estops them from later claiming the said
exemption.
DOCTRINE: Right to exemption under FC 153 is a personal privilege
granted to the judgment debtor. As such, it must be claimed not by
the sheriff, but by the debtor himself before the sale of property at
public auction. It is not sufficient that the person claiming
exemption merely alleges that such property is a family home. This
claim for exemption must be set up and proved to the sheriff. The
right may be waived or barred by laches.

Beneficiaries of a family home

1. Husband and wife, or an unmarried person who is the head of
a family
2. Their parents, ascendants, descendants, brothers and sisters,
whether the relationship be legitimate or illegitimate, who are
living in the family home and who depend upon the head of the
family for legal support.

When value of family home exceeds the maximum amount

 Court, upon application of a judgment creditor, may order the
sale of the family home if it finds that the actual value exceeds
the maximum amount allowed by law at the time of its
constitution.
 At execution sale, no bid below the value allowed for family
home is allowed.
 Proceeds of sale shall be applied as follows:
o Maximum value provided by law - ’
o Liabilities under the judgment ’
o Costs
o Judgment debtor
48
PART FIVE: RULES ON PROTECTION OF LIFE, LIBERTY AND SECURITY
XIV. WRIT OF HABEAS CORPUS
Check annex P for flowchart and annex S for comparative table.
A writ of inquiry, granted to test the right under which a person is
detained, and to relieve a person if such restrain is illegal.
RULE 102, Section 1. Except as otherwise expressly provided by
law, the writ of habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is deprived of his
liberty, or by which the rightful custody of any person is withheld
form the person entitled thereto.
*Can be suspended in cases of rebellion or invasion and when
public interest requires it (Art. III Sec. 15 Const.)
*Actual physical restraint is not always required; any restraint
which will prejudice freedom of action is sufficient. (Moncupa v
Enrile)
*Constructive restraint may also entitle a person to the benefits of
the writ as when there are threats to the person depriving him of
freedom of action
Where to file
RULE 102, Section 2. The writ of habeas corpus may be granted by
the Supreme Court, or any member thereof, on any day and at any
time, or by the CA or any member thereof in the instances
authorized by law, and if so granted it shall be enforceable
anywhere in the pH, and may be made returnable before the court
or any member thereof, or before a CFI, or any judge thereof for
hearing and decision on the merits. It may also be granted by a CFI,
or a judge thereof, on any day and at any time, and returnable
before himself, enforceable only within his judicial district.
A. Contents of the petition
Who may apply
RULE 102, Section 3. Application for the writ shall be by petition
signed and verified either by the party for whose relief it is intended,
or by some person on his behalf, and shall set forth:
(a) That the person in whose behalf the application is made is
imprisoned or restrained of his liberty;
1. The party for whose relief it is intended
2. Some person on his behalf (has a legally justified interest in the
freedom of the person)
Contents of petition
RULE 102, Section 3
(a) …
(b) The officer or name of person by whom he is so imprisoned or
restrained; or, if both are unknown or uncertain, such officer or
person may be described by an assumed appellation, and the
person who is served with the writ shall be deemed the person
intended;
(c) The place where he is so imprisoned or restrained, if known;
(d) A copy of the commitment or cause of detention of such person,
if it can be procured without impairing the efficiency of the remedy,
or if the imprisonment or restraint is without any legal authority,
such fact shall appear.
49
B. Contents of return
RULE 102, Section 10 Contents of return. — When the person to be
produced is imprisoned or restrained by an officer, the person who
makes the return shall state therein, and in other cases the person
in whose custody the prisoner is found shall state, in writing to the
court or judge before whom the writ is returnable, plainly and
unequivocably:
(a) Whether he has or has not the party in his custody or power, or
under restraint;
(b) If he has the party in his custody or power, or under restraint,
the authority and the true and whole cause thereof, set forth at
large, with a copy of the writ, order execution, or other process, if
any, upon which the party is held;
(c) If the party is in his custody or power or is restrained by him, and
is not produced, particularly the nature and gravity of the sickness
or infirmity of such party by reason of which he cannot, without
danger, be bought before the court or judge;
(d) If he has had the party in his custody or power, or under
restraint, and has transferred such custody or restraint to another,
particularly to whom, at what time, for what cause, and by what
authority such transfer was made.
RULE 102, Section. 11 Return to be signed and sworn to. — The
return or statement shall be signed by the person who makes it;
and shall also be sworn by him if the prisoner is not produced, and
in all other cases unless the return is made and signed by a sworn
public officer in his official capacity
D. When not proper or applicable
Not applicable
1. For vindicating denied right to bail
2. Appeal or certiorari available
3. Correcting errors in appreciation of facts or law (unless error
affects court’s jurisdiction)
When writ is allowed:
1. Review of deportation proceedings of aliens
2. Lack of jurisdiction to impose the sentence
E. When writ disallowed or discharged
1. Section 4
2. Section 14
3. Person restrained is in custody of an officer or under process
issued by the court or judge or by virtue of a judgment and said
court has jurisdiction to issue the process, render the
judgment or make the order
4. Jurisdiction appears after the writ is allowed despite any
informality or defect in the process, judgment, or order
5. Person is charged with or convicted of an offense in the
Philippines.
6. Arrest is illegal but supervening events justify the restraint:
a. issuance of judicial process
b. filing of a complaint before the trial courts a complaint
which issued a hold departure order and denied bail and
MTD
c. filing of information for the offense for which accused is
detained
RULE 102, Section 4 If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a
court of record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the writ shall
not be allowed; or if the jurisdiction appears after the writ is
allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Not shall
anything in this rule be held to authorize the discharge of a person
charged with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment
RULE 102, Section 14. If it appears that the prisoner was lawfully
committed, and is plainly and specifically charged in the warrant of
commitment with an offense punishable by death, he shall not be
released, discharged, or bailed. If he is lawfully imprisoned or
restrained on a charge of having committed an offense not so
punishable, he may be recommitted to imprisonment or admitted
to bail in the discretion of the court or judge. If he be admitted to
bail, he shall forthwith file a bond in such sum as the court or judge
deems reasonable, considering the circumstances of the prisoner
and the nature of the offense charged, conditioned for his
appearance before the court where the offense is properly
cognizable to abide its order of judgment; and the court or judge
shall certify the proceedings, together with the bond, forthwith to
the proper court. If such bond is not so filed, the prisoner shall be
recommitted to confinement.
MONCUPA v. ENRILE (1986)
SUMMARY: Moncupa, together with eight others, was arrested in Q.
Ave on the allegation that he was a National Democratic Front Staff
Member. His arraignment and further proceedings were not
pursued by the court. His motions for bail, however, were denied by
the court. Hence, he filed for a petition for writ of habeas corpus.
Note, however, that Moncupa was temporarily released on May 11,
1983, but his release is subject to the ff conditions: 1) petitioner
gets the approval of respondents for any travel outside Metro
Manila. 2) Approval of respondents is also required to change his
place of residence. 3) Prohibition that he should not "participate in
any interview that is inimical to the interest of national security." 4)
He is required to report regularly to respondents or their
representatives. Respondents argued that the petition was mooted
by his release. SC ruled that the temporarily release did not render
the petition moot and academic. Petition granted.
DOCTRINES:
• It is not physical restraint alone which is inquired into by the writ
of habeas corpus.
• A release that renders a petition for a writ of habeas corpus moot
and academic must be one which is free from involuntary
restraints. Where a person continues to be unlawfully denied one
or more of his constitutional freedoms, where there is present a
denial of due process, where the restraints are not merely
involuntary but appear to be unnecessary, and where a deprivation
of freedom originally valid has, in the light of subsequent
developments, become arbitrary, the person concerned or those
applying in his behalf may still avail themselves of the privilege of
the writ.
VELASCO v CA (1995)
SUMMARY: A warrant of arrest was issued against Larkins for
violations of BP 22 in RTC Pasig. Meanwhile, a complaint affidavit
accusing him of committing the crime of rape was filed with the NBI.
Thus, the NBI arrested him for his crime of rape. After being
detained, he posed bail for for his BP 22 cases, which the Pasig
RTC Judge accepted and ordered his immediate release ―unless
otherwise detained for other causes‖. NBI refused releasing
Larkins for he was detained for the crime of rape. A complaint was
later filed in RTC Antipolo. Then, Larkins filed 2 motions, the first for
50
bail and the second for the dismissal of the case. Both were denied.
This prompted his common-law wife, Cuyag, to file a petition for
habeas corpus with certiorari with the CA. The CA granted the
petition since the legal requirements of Rule 113 Sec. 5b were not
met. However, the SC reversed the CA and found that the detention
by the NBI was valid. Even if the arrest of a person is illegal,
supervening events may bar his release or discharge from custody.
Among such supervening events is the issuance of a judicial
process preventing the discharge of the detained person. Another
is the filing of a complaint or information for the offense for which
the accused is detained, as in the instant case.
CRUZ v. CA (2000)
SUMMARY: Initially, petitioner, charged with a violation of the
Dangerous Drugs Act of 1972, was sentenced to suffer life
imprisonment for selling dried marijuana fruiting tops. However,
with the effectivity of RA 7659 and the ruling in People v. Simon,
the penalty imposable on petitioner would only be prision
correccional with a duration of 6 mos 1 day to 6 years. Petitioner,
having already served a total of 6 years and 3 months by the time
of judgment, must be released from prison. Petition for habeas
corpus GRANTED.
SO v. TACLA (2010)
SUMMARY: Petitioner So filed the petition for the writs of habeas
corpus and amparo on behalf of his daughter Guisande accused of
Qualified Theft. Prior to the institution of the criminal proceedings,
daughter was committed by So for psychiatric treatment. Thus, the
return of the warrant for the arrest of Guisande, issued by Judge
Tacla which states that the former was confined at MMC for Bipolar
Mood Disorder and that she was "not ready for discharge". On the
petition for habeas corpus and amparo, the court resolved to issue
a joint writ of habeas corpus and amparo and refer the petition to
the Court of Appeals for decision. Meanwhile, NCMH submitted its
Evaluation Report according to which, Guisande is competent to
stand the rigors of court trial. Public respondent Judge ordered the
dismissal of Criminal Case for Qualified Theft against Guisande. In
view of such dismissal, Judge Tacla contends that the cases for
issuance of the writs of habeas corpus and amparo and the petition
for review on certiorari should be dismissed for having been
rendered moot and academic. SC: Certainly, with the dismissal of
the non-bailable case against accused Guisande, she is no longer
under peril to be confined in a jail facility, treatment of any medical
and mental malady she may or may not have, can no longer be
subjected to the lawful processes of the RTC Mandaluyong City. In
short, the cases have now been rendered moot and academic.
ILUSORIO v. BILDNER (2001)
SUMMARY: Erlinda Ilusorio was married to Potenciano Ilusorio.
Both were living separately since 1972. In 1999, Erlinda filed a
petition for habeas corpus to have custody of her husband in
consortium. CA dismissed; Erlinda appealed to the SC. SC
dismissed the petition for lack of merit. Erlinda filed an MR. SC
denied. Erlinda was unable to prove that there was illegal restraint.
CHIN HUI v. RODRIGUEZ (2001)
SUMMARY: In 1998, Ting Chin Hui, a Taiwanese national who
arrived in the PH, was arrested for using a passport that was
already canceled by the Taiwanese government in 1995. He then
filed a petition for habeas corpus with RTC-Manila. The petition was
initially granted, but was eventually denied in the SC. Chin Hui
argued that an appeal from the RTC on habeas corpus cases must
be made within 48 hours, pursuant to the pre 1997 Rules of Court.
However, the SC held that the reglementary period for filing such
appeal is now similar to that in ordinary civil actions. Further, the
SC held that the writ should not have been issued because Chin Hui
was lawfully and validly detained. Since one of the requirements for
admission in the Philippines is a valid passport – which Chin Hui
does not have – his arrest was legal and valid.
 TIJING v. CA (2001) VELUZ v. VILLANUEVA (2008)
SUMMARY: Edgardo and Bienvenida Tijing had a son, Edgardo Jr., SUMMARY: Edgardo Veluz filed a petition for habeas corpus against
Bienvenida left him in the care of her employer, Angelita Diamante, the adopted children of Eufemia Rodriguez, a 94-year old widow
while she went to the market. When she returned, both were allegedly suffering from a poor state of mental health and
missing. Four years later, Angelita’s common-law husband died in deteriorating cognitive abilities. She was living with Edgardo Veluz,
Hagonoy. Bienvenida went to his wake and saw her son, now her nephew and he acted as her guardian. Both the CA and the SC
named John Thomas. The Tijings filed a petition for habeas corpus, denied the petition. There is no proof that Eufemia is being
producing the midwife present at Edgardo Jr.’s birth as well as clinic detained and restrained of her liberty by the children and nothing
records, and Benjamin, who testified that Tomas was sterile. SC: If on record reveals that she was forcibly taken.
there is doubt on the identity of the minor in whose behalf the
application for the writ is made, petitioners cannot invoke with FLETCHER v DIR OF CORRECTIONS (2009)
certainty their right of custody over the said minor. Writ should be SUMMARY: Fletcher seeks release from prison, claiming that his
sentence was commuted by the President. He filed a petition
granted basing its ruling on the sufficiency of evidence presented
for issuance of writ of HC. Court held his petition should not be
by Bienvenida. denied for failure to comply with technical requirements.
Formalities for HC shall be construed liberally. However, the petition
THORNTON v. THORNTON (2004) should be denied because custody over the petitioner is
SUMMARY: Couple married in the Philippines and had a daughter. by virtue of a judicial process/valid judgment. Being on trial for
Wife left the family home with the daughter, reportedly for Basilan, another case, he is disqualified for issuance of writ.
without notifying the husband. Husband filed a petition for habeas
corpus in the Makati Family Court but this was dismissed because
of the allegation that the child was in Basilan. He filed another
petition for habeas corpus in the CA, which dismissed on ground
that The Family Courts Act of 1997 gave exclusive original
jurisdiction to Family Courts for petitions for HC in relation to the
custody of children. SC held otherwise and GRANTED petition for
review. The jurisdiction of the CA and the Family Courts is
concurrent. In cases where the territorial jurisdiction for the
enforcement of the writ cannot be determined with certainty, Sec.
2, Rule 102 of the ROC provides that the WHC may be granted “…by
the Court of Appeals or any member thereof in the instances
authorized by law, and if so granted it shall be enforceable
anywhere in the Philippines.”

SALIENTES v. ABANILLA (2006)

SUMMARY: After Loran moved away from his in-laws where his wife
and son lived, he prevented from seeing his son. Loran filed a
Petition for Habeas Corpus and Custody. The RTC ordered
petitioners to produce the child before the court, the issue of
custody was to be decided later on. The Court ruled that such order
was valid. Under Rule 41, Sec. 1 of the RoC an interlocutory order
is not appealable but the aggrieved party may contest such if there
was abuse of discretion. The order did not grant custody of the
minor to any of the parties but merely directed petitioners to
produce the minor in court and explain why private respondent is
prevented from seeing his child. Habeas corpus may be resorted to
in cases where rightful custody is withheld from a person entitled
thereto.

BARREDO v. VINARAO (2007)

SUMMARY: Pet was convicted for carnapping and illegal possession
of firearms. He filed a writ of Habeas Corpus arguing that he has
already served his sentence. SC: The writ may not be availed of
when the person in custody is under a judicial process or by virtue
of a valid judgment. While he has already served the minimum
penalty in the carnapping case, he has not yet served the minimum
penalty in the illegal possession of firearms case.

.”

51
XV. WRIT OF AMPARO
Check annex Q for flowchart.
Amparo – to protect
Originally from Mexico, took many forms
1. Amparo libertad – personal freedom
2. Amparo contra leyes – judicial review of constitutionality of
statutes
3. Amparo casacion – judicial review of constitutionality and
legality of judicial decisions
4. Amparo agrario – protection of peasant’s rights
A. Coverage
A.M. 07-9-12-SC, Section 1. The petition for a writ of amparo is a
remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act
or omission of a public official or employee, or of a private individual
or entity. The writ shall cover extralegal killings and enforced
disappearances of threats thereof.
Elements of enforced disappearance
1. Arrest, detention or abduction of a person by a gov’t official or
organized groups or private individuals acting with the direct
or indirect acquiescence of gov’t
2. Refusal of State to disclose the fate or whereabouts of the
person concerned or a refusal to acknowledge the deprivation
of liberty which places such persons outside the protection of
law (Sec. of Nat’l Defense v Manalo)
B. Amparo vs Search warrant
The Constitutional provision against unreasonable searches and
seizure is a protection of the people from unreasonable intrusion of
gov’t, not protection of gov’t from the demand of the people.
Amparo production order may be likened to production of
documents or things under Rule 27.
C. Who may file
Section 2 The petition may be filed by the aggrieved party or by any
qualified person or entity in the following order:
a. Any member of the immediate family, namely: the spouse,
children and parents of the aggrieved party;
b. Any ascendant, descendant or collateral relative of the aggrieved
party within the fourth civil degree of consanguinity or affinity, in
default of those mentioned in the preceding paragraph; or
c. Any concerned citizen, organization, association or institution, if
there is no known member of the immediate family or relative of
the aggrieved party.
The filing of a petition by the aggrieved party suspends the right of
all other authorized parties to file similar petitions. Likewise, the
filing of the petition by an authorized party on behalf of the
aggrieved party suspends the right of all others, observing the order
established herein.
The last paragraph is to prevent indiscriminate and goundless filing
of petitions for amparo
Where to file
Sec. 3 The petition may be filed on any day and at any time with the
Regional Trial Court of the place where the threat, act or omission
was committed or any of its elements occurred, or with the
Sandiganbayan, the Court of Appeals, the Supreme Court, or any
justice of such courts. The writ shall be enforceable anywhere in the
Philippines.
*No docket and other lawful fees (sec. 4)
52
Contents of petition
Section 5. Contents of Petition. – The petition shall be signed and
verified and shall allege the following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent
responsible for the threat, act or omission, or, if the name is
unknown or uncertain, the respondent may be described by an
assumed appellation;
(c) The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or omission
of the respondent, and how such threat or violation is committed
with the attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct of the
investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine
the fate or whereabouts of the aggrieved party and the identity of
the person responsible for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and
equitable reliefs.
D. Contents of Return
Section. 9. Return; Contents. – Within seventy-two (72) hours after
service of the writ, the respondent shall file a verified written return
together with supporting affidavits which shall, among other things,
contain the following:
(a) The lawful defenses to show that the respondent did not violate
or threaten with violation the right to life, liberty and security of the
aggrieved party, through any act or omission;
(b) The steps or actions taken by the respondent to determine the
fate or whereabouts of the aggrieved party and the person or
persons responsible for the threat, act or omission;
(c) All relevant information in the possession of the respondent
pertaining to the threat, act or omission against the aggrieved party;
and
(d) If the respondent is a public official or employee, the return shall
further state the actions that have been or will still be taken:
1. To verify the identity of the aggrieved party;
2. To recover and preserve evidence related to the death or
disappearance of the person identified in the petition which may
aid in the prosecution of the person or persons responsible;
3. To identify witnesses and obtain statements from them
concerning the death or disappearance;
4. To determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have
brought about the death or disappearance;
5. To identify and apprehend the person or persons involved in the
death or disappearance; and
6. To bring the suspected offenders before a competent court.
The return shall also state other matters relevant to the
investigation, its resolution and the prosecution of the case.
A general denial of the allegations in the petition shall not be
allowed.
Where to file return
When writ is issued by:
RTC – return to such court or judge
SB or CA – return to such court of justice or RTC where act or
omission or threat committed or elements occurred
SC – return to SC, SB, CA, RTC where act or omission or threat
committed or elements occurred. (sec. 3)
*No docket fee (sec. 4)
*Failure to file return = proceed to hear petition ex parte (sec. 12)
*All defenses not pleaded deemed waived (sec. 10)
Section 11 Prohibited pleadings:
a. Motion to dismiss;
b. Motion for extension of time to file return, opposition, affidavit,
position paper and other pleadings;
c. Dilatory motion for postponement;
d. Motion for a bill of particulars;
e. Counterclaim or cross-claim;
f. Third-party complaint;
g. Reply;
h. Motion to declare respondent in default;
i. Intervention;
j. Memorandum;
k. Motion for reconsideration of interlocutory orders or interim
relief orders; and
l. Petition for certiorari, mandamus or prohibition against any
interlocutory order.
E. Procedure for hearing
Section. 13. Summary Hearing. — The hearing on the petition shall
be summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from the
parties.
The hearing shall be from day to day until completed and given the
same priority as petitions for habeas corpus.
Judgment shall be rendered within 10 days from time petition is
submitted for decision. Judgment may either grant the privilege of
the writ and other reliefs or deny the privilege. (sec. 18)
Appeal will be with the SC under R45 raising questions of fact or
law or both filed within 5 working days from notice of adverse
judgment. (sec. 19)
If the case cannot proceed for valid causes (i.e. threat on petitioner
or witnesses and they fail to appear), case will not be dismissed but
will be archived. Court may order the revival upon motion or motu
proprio when ready to proceed. Case shall be dismissed after 2
years from notice to petitioner of archiving for failure to prosecute.
(sec. 20)
F. Separate Action
This Rule shall not preclude the filing of separate criminal, civil or
administrative actions. (sec. 21)
G. Effect of filing Criminal Action
When a criminal action has been commenced, no separate petition
for the writ shall be filed. The reliefs under the writ shall be available
by motion in the criminal case.
The procedure under this Rule shall govern the disposition of the
reliefs available under the writ of amparo. (sec. 22)
H. Consolidation
When a criminal action is filed subsequent to the filing of a petition
for the writ, the latter shall be consolidated with the criminal action.
When a criminal action and a separate civil action are filed
subsequent to a petition for a writ of amparo, the latter shall be
consolidated with the criminal action.
After consolidation, the procedure under this Rule shall continue to
apply to the disposition of the reliefs in the petition. (sec. 23)
53
I. Interim Reliefs
Upon filing of the petition or at any time before final judgment:
(a) Temporary Protection Order. – Upon motion or motu proprio,
may order that the petitioner or the aggrieved party and any
member of the immediate family be protected in a government
agency or by an accredited person or private institution capable of
keeping and securing their safety. If the petitioner is an
organization, association or institution referred to in Section 3(c) of
this Rule, the protection may be extended to the officers involved.
SC shall accredit the persons and private institutions above and the
latter shall comply with conditions imposed by SC
(b) Inspection Order. — upon verified motion and after due hearing,
may order any person in possession or control of a designated land
or other property, to permit entry for the purpose of inspecting,
measuring, surveying, or photographing the property or any
relevant object or operation thereon.
The motion shall state in detail the place or places to be inspected.
It shall be supported by affidavits or testimonies of witnesses
having personal knowledge of the enforced disappearance or
whereabouts of the aggrieved party.
Opposition grounds: nat’l security or privileged nature of
information. (court, justice or judge may conduct hearing in
chambers to determine merit)
The movant must show that the inspection order is necessary to
establish the right of the aggrieved party alleged to be threatened
or violated.
The inspection order shall specify the person or persons authorized
to make the inspection and the date, time, place and manner of
making the inspection and may prescribe other conditions to
protect the constitutional rights of all parties. The order shall expire
five (5) days after the date of its issuance, unless extended for
justifiable reasons.
(c) Production Order. – The court, justice or judge, upon verified
motion and after due hearing, may order any person in possession,
custody or control of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute or contain
evidence relevant to the petition or the return, to produce and
permit their inspection, copying or photographing by or on behalf of
the movant.
Opposition grounds: nat’l security or privileged nature of
information. (court, justice or judge may conduct hearing in
chambers to determine merit)
The court, justice or judge shall prescribe other conditions to
protect the constitutional rights of all the parties.
(d) Witness Protection Order. – The court, justice or judge, upon
motion or motu proprio, may refer the witnesses to DOJ for
admission to the Witness Protection under RA 6981
The court, justice or judge may also refer the witnesses to other
government agencies, or to accredited persons or private
institutions capable of keeping and securing their safety. (sec. 14)
Reliefs B (inspection) and C (production) is available to respondent
upon verified motion after due hearing. B shall be supported by
affidavits or testimonies of witnesses having personal knowledge
of the defense of respondent. (sec. 15)
Failure to make a return or making a false return or disobeying or
resisting a lawful process or order may be punished for contempt
(imprisonment or fine) (sec. 16)
 J. Quantum of Proof
Substantial evidence (sec. 17)
If respondent is a private individual or entity, he must prove
ordinary diligence.
If respondent is a public official or employee, he must prove
extraordinary diligence in performance of rules and regulations and
he cannot invoke presumption that official duty has been regularly
performed. (sec. 17)
CANLAS v NAPICO (2008)
SUMMARY: Petitioners were settlers on a parcel of land in Pasig,
but their homes were about to be demolished pursuant to a court
judgment. They filed the present petition for issuance of the Writ of
Amparo before the SC alleging that they were deprived of their right
to “liberty, freedom and/or rights to shelter”. They averred that the
defendants held fake TCTs issued by unscrupulous government
officials therefore it would be best to expose these ‘syndicates’ and
have the officials summoned and answer for such acts by way of
Writ of Amparo. The SC denied their petition. Threatened demolition
of a dwelling by virtue of final judgment is NOT within the scope of
the Writ of Amparo. This remedy is intended for the protection of
the highest possible rights of any person, which is his or her right to
life, liberty and security. Also, this writ is issued immediately upon
filing but only if on its face it ought to be issued.
SEC. OF DEFENSE v MANALO (2008)
SUMMARY: The Manalo brothers were abducted, held captive and
tortured by military officers under the command of Gen. Palparan.
When they escaped they filed a petition which was eventually
treated as under the Amparo rule. The CA granted the writ of
amparo, which the petitioners questioned. The SC held that the
granting of the writ was proper. The Court promulgated
the Amparo Rule in light of the prevalence of extralegal killing and
enforced disappearances. There is sufficient evidence to
substantiate the testimony of the Manalo brothers. In the amparo
context, the "right to security" is actually the "freedom from threat."
The right to security of person is a guarantee of bodily and
psychological integrity or security. This right is built into the
guarantees of the right to life and liberty. The circumstances of
respondents' abduction, detention, torture and escape reasonably
support a conclusion that there is an apparent threat that they will
again be abducted, tortured, and this time, even executed. These
constitute threats to their liberty, security, and life, actionable
through a petition for a writ of amparo. Also, there is substantial
evidence to warrant the conclusion that there is a violation of
respondents' right to security as a guarantee of protection by the
government.
BURGOS v MACAPAGAL-ARROYO (2010)
SUMMARY: Burgos was abducted on April 29, 2007. A security
guard saw the plate number of the car. The plate number was
registered to a different car that was impounded by the AFP
because it was involved in transporting lumber without permit. After
the abduction, they found that the plate number was missing from
the impounded car. 2 members of NPA claim that they saw Jonas
be abducted, that Jonas was a member of the NPA and that it was
the NPA who was responsible for the abduction. A sketch was made
to show the face of 2 persons involved but the PNP did not follow
through on this lead. State Prosecutor Velasco also named 5
members of the AFP who were allegedly involved in the abduction
but this was also not investigated deeply. SC ordered the case to
be handled by the CHR as the protector of human rights after
finding that PNP and AFP did not exert all efforts to solve the case
54
and failed to exert extraordinary diligence in the performance of
their duties as required by the Rule on the Writ of Amparo. The
petition against GMA was dismissed for privilege of immunity from
suit.
ROXAS V MACAPAGAL-ARROYO (2010)
SUMMARY: Roxas was abducted while volunteering for health
survey activities in Tarlac. Suspected of being a member of the CPP-
NPA, she was tortured for 5 days. After her release, she filed a
petition for the writs of amparo and habeas data.
SC issued the writs, returnable to the CA. CA extended the writ of
amparo and habeas data to Roxas but denied her prayers for an
inspection order, production order, and return of specified personal
belongings. CA found that Roxas failed to establish
military/government participation in her abduction, so respondents
were absolved. With respect to the writ of amparo, SC affirms;
Roxas seeks to hold respondents responsible, but this is outside
the writ’s power. Matters of liability are not determinable in a mere
summary amparo proceeding. However, the SC struck down the
CA’s grant of the privilege of the writ of habeas data because it was
not proven that respondents had access to the supposed records
and photographs of Roxas.
LOZADA v MACAPAGAL-ARROYO (2012)
SUMMARY: Lozada was issued a subpoena by Senate with regards
to the NBN-ZTE scandal. He did not appear during the hearing and
instead flew to London on ‘official business’. Upon his return, he
was escorted by several men and was told by Sec. Atienza that
Atienza was talking to ES and Ma’m, whom Lozada assumed to be
ES Recto and the President. Lozada was brought to LSGH where he
was purportedly harassed and threatened by the police.His brother
filed for a writ of amparo. The court held that the Writ of Amparo
was properly denied by the CA because the petitioners failed to
meet the threshold of substantial evidence and that they failed to
prove the existence of a continuing threat.
DE LIMA v GATDULA
SUMMARY: Atty. Gatdula filed a Petition for the Issuance of a Writ
of Amparo, directed against Justice Sec. De Lima, “to cease and
desist from framing up [Gatdula] for the fake ambush incident by
filing bogus charges of Frustrated Murder against [Gatdula] in
relation to the alleged ambush incident.” Judge Pampilo issued
summons ordering De Lima, et al. to file an Answer and setting the
case for hearing, instead of deciding on whether to issue a Writ of
Amparo. After hearing on the main case, the judge also ordered the
parties to file their memoranda (even without a Return or Answer),
and decided that this would be filed “in lieu of [De Lima, et al.’s]
answer.” RTC rendered a “Decision” granting the issuance of the
Writ of Amparo and interim reliefs prayed for (i.e., temporary
protection, production and inspection orders). SC nullified RTC
decision.
The RTC “Decision” could not be the judgment or final order that is
appealable under Section 19 of the Rule on the Writ of Amparo.
This “Decision” pertained to the issuance of the writ under Section
6 of the Rule on the Writ of Amparo, not the judgment under Section
18. The “Decision” is thus an interlocutory order. The confusion of
the parties arose due to the procedural irregularities in the RTC,
which affected the mode of appeal that De Lima, et al. used in
elevating the matter to the SC. A Return is the responsive pleading
for petitions for the issuance of Writs of Amparo, not an Answer.
The privilege of the Writ of Amparo should be distinguished from
the actual order called the Writ of Amparo. The privilege includes
availment of the entire procedure outlined in A.M. No. 07-9-12-SC.
The judgment should detail the required acts from the respondents
that will mitigate, if not totally eradicate, the violation of or the
threat to the petitioner's life, liberty or security. A judgment which
simply grants “the privilege of the writ” cannot be executed. It is
tantamount to a failure of the judge to intervene and grant judicial
succor to the petitioner.
“ ’
”
55
XVI. WRIT OF HABEAS DATA
Check annex R po.
A. Scope of the writ
AM No. 08-1-16-SC. Section 1 The writ of habeas data is a remedy
available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of
a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and
correspondence of the aggrieved party.
Not enacted solely for complementing Amparo. It may be availed of
in cases outside of extralegal killings and enforced
disappearances.
B. Availability of Writ
Section 2. Who May File. - Any aggrieved party may file a petition
for the writ of habeas data. However, in cases of extralegal killings
and enforced disappearances, the petition may be filed by:
(a) Any member of the immediate family of the aggrieved party,
namely: the spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of consanguinity or
affinity, in default of those mentioned in the preceding paragraph
Where to file:
1. RTC where petitioner or respondent resides or where data is
gathered, collected or stored (option of petitioner)
2. SC, CA, SB when action concerns public data files of gov’t
offices.
*Writ enforceable anywhere
*No docket fees for indigent petitioner. It shall be acted
immediately without prejudice to submission of proof of indigency
not later than 15 days from filing. (sec. 5)
C. Contents of Petition
Secrtion 6. Petition. - A verified written petition for a writ of habeas
data should contain:
(a) The personal circumstances of the petitioner and the
respondent;
(b) The manner the right to privacy is violated or threatened and
how it affects the right to life, liberty or security of the aggrieved
party;
(c) The actions and recourses taken by the petitioner to secure
the data or information;
(d) The location of the files, registers or databases, the
government office, and the person in charge, in possession or
in control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating,
rectification, suppression or destruction of the database or
information or files kept by the respondent.
(f) In case of threats, the relief may include a prayer for an order
enjoining the act complained of; and
(g) Such other relevant reliefs as are just and equitable.
Writ will be issued by court, justice, or judge if on the face of the
petition, it ought to issue (sec. 7)
 D. Contents of Return GAMBOA v. CHAN (2012)
(within 5 working days) A.O. No. 275 created the Zenarosa Commission, tasked to to
investigate the existence of private army groups (PAGs) in the
country with a view to eliminating them before the 10 May 2010
Section. 10 Return; Contents
elections and dismantling them permanently in the future.
(a) The lawful defenses such as national security, state secrets,
Gamboa, Mayor of Ilocos Norte, was included by the PNP-Ilocos
privileged communications, confidentiality of the source of
Norte in the enumeration of personalities maintaining private army
information of media and others;
groups. Because of her inclusion, she filed a petition for the
(b) In case of respondent in charge, in possession or in control of
issuance of the writ of habeas data, on the ground that her right to
the data or information subject of the petition;
privacy was violated. Court denied the petition, stating that the
(i) a disclosure of the data or information about the petitioner,
state interest of dismantling PAGs far outweighs the alleged
the nature of such data or information, and the purpose for its
intrusion on the private life of Gamboa, especially when the
collection;
collection and forwarding by the PNP of information against her was
(ii) the steps or actions taken by the respondent to ensure the
pursuant to a lawful mandate.
security and confidentiality of the data or information; and,
(iii) the currency and accuracy of the data or information held;
and, MERALCO v LIM (2010)
(c) Other allegations relevant to the resolution of the proceeding. Lim was an administrative clerk at Meralco Bulacan. The head of
A general denial of the allegations in the petition shall not be HR issued a Memorandum directing Lim’s transfer to the Alabang
allowed. sector because the threats and accusations from unknown persons
might compromise her security. She questioned the real motive of
Prohibited pleadings: this transfer and claimed that the threats were highly suspicious,
a) Motion to dismiss; doubtful or mere jokes if they existed at all. No response was made
b) Motion for extension of time to file return, opposition, affidavit,
by Meralco so she filed a petition for the issuance of writ of habeas
position paper and other pleadings;
c) Dilatory motion for postponement; data with RTC praying for a full disclosure of the data about her in
d) Motion for a bill of particulars; relation to the report allegedly received by Meralco on the threats
e) Counterclaim or cross-claim; SC HELD that it is a labor dispute. WRIT OF HABEAS DATA WILL NOT
f) Third-party complaint; issue to protect purely property or commercial concerns.
g) Reply; Employment constitutes a property right.
h) Motion to declare respondent in default;
i) Intervention;
j) Memorandum; TAPUS v DEL ROSARIO (1990)
k) Motion for reconsideration of interlocutory orders or interim The private respondents filed a complaint for forcible entry; claim
relief orders; and that they are the owners of the disputed land and the petitioners
l) Petition for certiorari, mandamus or prohibition against any came armed with bolos entered the disputed land by force and
interlocutory order. intimidation and built structures. MCTC ruled in favor of private
respondents based on the finding they had prior possession. The
E. Instances when petition may be heard in chambers petitioners filed this present petition for
certiorari under R65 and petitions for issuance of writ of amparo
1. Release of data or info may compromise national security or and habeas data for PNP to release reports on the burning of
state secrets petitioner’s homes. The SC denied the petition. Writ of amparo will
2. Data or info cannot be divulged to public due to its nature or not issue to protect mere property rights. None of the supporting
privileged character. affidavits compellingly show that the threat to the rights to life,
liberty and security of the petitioners is imminent or is continuing.
Writ of habeas data will not issue if there is no allegation of violation
F. Consolidation of right to privacy.

Section. 21. Consolidation. - When a criminal action is filed

subsequent to the filing of a petition for the writ, the latter shall be
consolidated with the criminal action.
When a criminal action and a separate civil action are filed
subsequent to a petition for a writ of habeas data, the petition shall
be consolidated with the criminal action.
After consolidation, the procedure under this Rule shall continue to
govern the disposition of the reliefs in the petition.

G. Effect of filing criminal action

When a criminal action has been commenced, no separate petition
for the writ shall be filed. The relief under the writ shall be available
to an aggrieved party by motion in the criminal case.
The procedure under this Rule shall govern the disposition of the
reliefs available under the writ of habeas data.

H. Institution of Separate Action

The filing of a petition for the writ of habeas data shall not preclude
the filing of separate criminal, civil or administrative actions. “ ‘ ’
’”
56
PART SIX: RULES ON CHANGE, CANCELLATION OR CORRECTION OF ENTRIES
XVII: CHANGE OF NAME
Annex T.
Venue:
RTC where he resides or in Manila, or Family Courts
A. Differences under Rule 103, Rule 108
See Annex W
B. Grounds for change of name
1. Name is ridiculous, tainted with dishonor or extremely difficult
to write or pronounce.
2. Change results as a legal consequence of legitimation
3. The change will avoid confusion.
4. A sincere desire to adopt a Filipino name to erase signs of
former alienage (Ang Chay v Republic, 1970)
5. Having continuously used and been known since childhood by
a Filipino name, having been unaware of alien parentage
(Uy v. Republic, 1965)
*Legal separation not a ground
*The name that can be changed is that in the civil register, not
baptismal certificate or that which the person is known in the
community
*Alien must be domiciled in PH for this petition
*Verification is not a jurisdictional requirement, hence not a ground
for dismissing petition.
*All aliases must be set forth in the petition’s title. Such defect
would be fatal, even if aliases are found in the body.
*Change of name granted would only affect petitioner, not spouse
and children. Separate petition must be filed.
SISON v REPUBLIC (1982)
SUMMARY: Danilo and Josephine/Jocelyn’s surname in the Civil
Registry is listed as “de la Cruz”. However, all of their other records
listed “Sison” as their surname. The source of the confusion is their
dad, Antonio, who used de la Cruz, the surname of his step dad, in
his marriage. Danilo and Josephine, had problems with their travel
documents due to the inconsistency of their surname. They filed a
Petition for Correction of Entry in their Birth Certificate. The SolGen
opposed saying the change is substantial and summary
proceedings under 108 are for clerical errors. The Court granted
the Petition and held that this case falls in the exception that this
is not a summary action. The petition was published and no one
opposed except the SolGen who didn’t present evidence. No doubt
is cast on credibility of petitioner’s allegations and evidence.
REPUBLIC v CA (1996)
SUMMARY: Sps. Caranto filed a petition for the adoption of Midael
Manzon with prater for the correction of the minor’s first name from
Midael to Michael. OSG opposed stating that (1) the notice was
defective for using Michael instead of Midael and (2) a correction
of name cannot be granted for in a petition for an adoption but
should be filed under a correction of an entry in the civil registry
under Rule 108. RTC and CA granted the adoption and change of
name but the SC reversed them. As for the petition for adoption,
the RTC acquired jurisdiction because there cannot possibly be any
confusion in the notice since names can be read with the same
rhyme and tone so the purpose of giving notice to the public is
57
fulfilled. As for the correction of name, the RTC did not acquire
jurisdiction since the same is governed by Rule 108 Sec. 2(o).
REPUBLIC v BELMONTE (1988)
SUMMARY: Anita Po filed a petition for change of name to Veronica
Pao. She also sought permission to have her birth records
corrected: father’s name changed from Po Yu to Pao Yu and
mother’s name changed from Pakiat Chan to Helen Chan, claiming
them to be clerical errors due to misunderstanding Chinese names.
SC held that she has not presented reasonable cause for change
of name. She did not show that her father’s name was registered
erroneously. Also, summary procedure for correction of civil register
is confined to innocuous or clerical errors and not to a material
change in surname. In CAB, it involves the very identity of her
parents and must be determined in a different proceeding more
adversary in character.
REPUBLIC v MARCOS (1990)
SUMMARY: Petition for change of name filed by Pang Cha Quen. As
her daughter treats her stepfather as her father, she wishes to
adopt his surname “Dela Cruz”. Judge issued order granting
petition, but Gov’t (SolGen) appealed. SC: For a publication of a
petition for a change of name to be valid, the title thereof should
include, first, his real name, and second, his aliases, if
any. The omission of her other alias-- "Mary Pang"-- in the captions
of the court's order and of the petition defeats the purpose of the
publication. The trial court did not acquire jurisdiction over the
subject. Our laws do not authorize legitimate children to adopt the
surname of a person not their father because it can result in
confusion of their paternity. The petition for change of name must
be filed by the person desiring to change his/her name, even if it
may be signed and verified by some other person in his behalf. In
this case, however, the petition was filed by Pang Cha Quen not by
May Sia. Hence, only May Sia herself, alias Manman Huang, alias
Mary Pang, when she shall have reached the age of majority, may
file the petition to change her name. The decision to change her
name, the reason for the change, and the choice of a new name
and surname shall be hers alone to make. A change of name is a
mere privilege and not a matter of right.
SAN ROQUE v. REPUBLIC (1968)
SUMMARY: San Roque’s name was recorded in her birth certificate
and the civil registry as Lucia San Roque. But since birth and from
then on, she always used the name Leoncia San Roque. She filed
a petition to “correct name in the birth certificate of Leoncia San
Roque”, praying that the name appearing in the civil registry be
corrected to read Leoncia. The state/OSG opposed the petition,
arguing that the correction could not be made in the proceedings
commenced by San Roque on the ground that the petition did not
allege that a clerical error had been committed. SC held that the
CFI did not err in granting the petition. Ultimately, notwithstanding
the imperfection of the language involved, the petition was, in
essence, one to secure judicial authority for San Roque to change
her name from Lucia to Leoncia – a petition which falls reasonably
within the provisions of Rule 103.
RP v. MERCADERA (2010)
SUMMARY: Merlyn Mercadera filed for correction of her given name
because her Certificate of Live Birth reflects the name “Marilyn”
when she has been called Merlyn all her life. She initially sought an
RA 9048 petition before the
Office of the Local Civil Registrar of Dipolog City, but was advised to
get a judicial order first. She then filed a Petition For Correction of
Some Entries as Appearing in the Certificate of Live Birth under
Rule 108, which the RTC
granted. OSG appeals, saying that a change of name is covered by
Rule 103 (not 108). CA and SC affirm RTC.
Mercadera’s petition before the RTC correctly falls under Rule 108
as it simply sought a correction of a misspelled given name. Rule
108 is not limited to clerical errors in names. As held in Rep. v.
Valencia, substantial errors in entries (citizenship/civil
status/paternity) may be corrected using Rule 108 provided that
there are adversary proceedings. The fact that no one opposed the
petition, including the OSG, did not deprive the court of its
jurisdiction to hear the same and did not make the proceeding less
adversarial in nature. Mercadera complied with the requirements
for an adversarial proceeding before the RTC.
HUANG TIN v. RP (1967)
SUMMARY: A petition to change the name of Ong Huan Tin to
Teresita Tan was denied by the Juvenile and Domestic Relations
Court because she is an alien. SC held that aliens can apply for a
change of name under the Rules of Court, provided that they are
domiciled in the Philippines.In Sec. 1, Rule 103, the word "person"
applies to ALL natural persons. It does not require that the
petitioner’s citizenship be stated in his petition. It is enough that
the petition be verified, signed by the petitioner or another person
in his behalf, and states: (a) that the petitioner has been a bona
fide resident of the province where the petition is filed for at least
3 years prior to the date of filing; (b) the cause for which the change
of name is sought; and (c) the name asked for. Filipino citizenship
is NOT a requirement.
SILVERIO v. REPUBLIC (2007)
SUMMARY: Silverio filed petition for change of first name and sex
on ground of sex reassignment. SC: Cannot change First Name and
Sex on Ground of reassignment of sex; no law allowing it. Court has
no jurisdiction as under. Neither can the court decide it based on
equity because it will amount to judicial legislation.
PEOPLE v CAGANDAHAN (2008)
SUMMARY: Jennifer Cagandahan was diagnosed to have
Congenital Adrenal Hyperplasia which is a condition where persons
afflicted possess both male and female characteristics. She Filed a
Petition for Correction of Entries in Birth Certificate to change her
gender from female to male and her name from Jennifer to Jeff. The
SC granted the change of her gender and ruled that a change of
name is not a matter of right but of judicial discretion, to be
exercised in the light of the reasons adduced and the
consequences that will follow. The change of name from Jennifer to
Jeff implies a change of a feminine name to a masculine name.
Considering the consequence that the change of name merely
recognizes his preferred gender, change of name was also granted.

RP v. CAPOTE (2007)
SUMMARY: Giovanni’s mother works in the US and wishes to petition
for Giovanni to join her there, and claims the continued use of the
name of the natural father may complicate Giovanni’s status as
natural child. The petition was given due course for sufficiency in
form and substance. The petition was published in a newspaper of
general circulation 1x/week for 3 weeks and a copy thereof was
given to the OSG. Since there was no opposition, evidence was
presented ex parte and TC GRANTED the change of name, affirmed
by CA. The OSG claims TC erred in granting the petition thru a
“summary proceeding”.
DOCTRINE: The SC upheld the CA. His birth being prior the
effectivity Family Code, CC Art. 366 provides that “A natural child
recognized by only 1 of the parents shall employ the surname of
the recognizing parent.” Thus, Giovanni availed of the proper
remedy, a petition for change of name under Rule 103 of the Rules
of Court. The fact that no one opposed the petition did not deprive
the court of its jurisdiction to hear the same nor does it make the
proceeding less adversarial in nature. All interested parties were
deemed notified and the whole world considered bound by the
judgment therein.

RP v. KHO (2007)
SUMMARY: Respondents filed a case to substantial changes to
certain entries in their birth certificates. RTC and CA granted the
changes, but Republic argues that such changes are substantial
and the proceedings should had been adversarial (not just ex
parte), with indispensable parties impleaded. SC ruled that an
adversarial proceeding is not necessary. When all the procedural
requirements under Rule 108 are thus followed, the appropriate
adversary proceeding necessary to effect substantial corrections
to the entries of the civil register is satisfied. The publication of the
order of hearing under Section 4 of Rule 108 cured the failure to
implead an indispensable party. The purpose precisely of Section “
4, Rule 108 is to bind the whole world to the subsequent judgment ”
on the petition.

58
XVIII: CANCELLATION OR CORRECTION OF ENTRIES IN THE
CIVIL REGISTRY
Annex U and V.
A. Entries subject to cancellation or correction
a) Births
b) Marriages
c) Deaths
d) Legal separations
e) Judgments of annulments of marriage
f) Judgments declaring marriages void from the beginning
g) Legitimations
h) Adoptions
i) Acknowledgments of natural children
j) Naturalization
k) Election, loss, recovery of citizenship
l) Civil interdiction
m) Judicial determination of filiation
n) Voluntary emancipation of a minor
o) Changes of name
*Such changes have public interest implications, hence needs
approval of the court.
*Cancellation or correction of substantial errors is allowed provided
proceeding is adversary (all relevant facts have been fully
developed, opposing counsel given opportunity to demolish other
party’s case, and evidence thoroughly weighed and considered)
CORPUZ v. STO. TOMAS (2010)
SUMMARY: Corpuz, a naturalized Candian citizen, obtained a
divorce decree from Canada. Civil registry of Pasay recorded it. He
filed a petition for judicial recognition of this decree. RTC denied
this stating that only the Filipino spouse may file the petition. SC
held that RTC is correct. SC also held that the foreign divorce decree
must be proven under our rules on evidence. RE: Civil Registry, SC
held that the Pasic City Civil Registry improperly registered the
decree. The law requires the entry in the civil registry of judicial
decrees that produce legal consequences touching upon a person's
legal capacity and status. But the law and submission of the decree
by themselves do not ipso facto authorize the decree's registration.
The law should be read in relation with the requirement of a judicial
recognition of the foreign judgment before it can be given res
judicata effect.
Rule 108 requires that the verified petition must be filed with the
RTC of the province where the corresponding civil registry is
located; that the civil registrar and all persons who have or claim
any interest must be made parties to the proceedings; and that the
time and place for hearing must be published in a newspaper of
general circulation. These requirements were not met in the CAB.
LIM v. ZOSA (1986)
SUMMARY: Lim filed a petition under Rule 108 for correction of
entry in the birth certificate of Kim Joseph describing him as a
Chinese citizen rather than Filipino. On opposition of the Local Civil
Registrar, the CFI Judge dismissed the petition stating that Rule
108 covers only summary proceedings for mere clerical errors. The
SC reversed the dismissal and reinstated the case. The stricter view
adhered to by the CFI Judge is no longer the prevailing rule.
Republic v. Valencia has declared that CC Art. 412 relating to
correction of entries in civil registry includes more than mere
clerical errors. Thus, Rule 108 providing for the procedure for the
implementation of Art. 412, also covers more than mere clerical
errors. For substantial errors relating to status of a person such as
59
citizenship, the proceeding must be adversary for the court to best
ascertain the truth (since that the correction of entry re citizenship
is just a rectification of error and not change of status). The
adversary procedure is satisfied by following the requirements
under Sec. 3, 4 and 5 of Rule 108 (parties to be impleaded, notice
and publication requirement, and opposition).
RP v. BAUTISTA (1987)
SUMMARY: Imelda petitioned for to correct and change the word
"American" into the word "Danish" in the birth certificate of her son,
Raymund to reflect the true nationality of her husband. Republic
opposed the petition, arguing that correction of entry in the Civil
Registry is allowed only for mere clerical errors or mistakes, but not
to substantial changes affecting the civil status, nationality or
citizenship of the person concerned. The Court upheld the order to
change the word in the birth certificate. Proceedings under Article
412 of the Civil Code and Rule 108 of the Rules of Court may either
be summary or adversary in nature. If the correction sought to be
made in the civil register is clerical, then the procedure to be
adopted is summary. If the rectification is not for the correction of
clerical errors of a harmless and innocuous nature, but one
involving nationality or citizenship, it is deemed substantial, and the
procedure is adversary. In this case, there was compliance with
Sections 3, 4 and 5 of Rule 108, thus the case is adversary.
LEONER v. CA (1996)
SUMMARY: Virginia and Mauricio were married but mostly lived
separately. Eventually, Mauricio became unfaithful and lived with a
foreigner. Virginia filed for alimony and separation in Switzerland.
Virginia also found out that the solemnizing officer failed to transmit
a copy to the civil registry. Hence, she filed for late registration and
was granted. The higher court of Switzerland granted alimony and
this was affirmed by the Federal Court. Mauricio then filed a petition
for cancellation of late registration for non-observance of legal
requirements of marriage and eventually amended the petition and
added several other grounds. Trial court ordered the cancellation
of registration and decreed the marriage to be null and void. CA
allowed the appeal but did not rule on the merits. SC stated that
under Rule 108, only clerical errors are allowed to be corrected.
When it involved the changing of status of a person such as
declaration of nullity of marriage, this has to be threshed in an
adversarial proceeding and not in a summary proceeding like the
one under Rule 108.
BABIERA v. CATOTAL (2000)
SUMMARY: Presentacion Catotal filed a petition for the cancellation
of the entry of birth of Teofista Babiera, alleging that Teofista was
actually the child of their housemaid Flora Guinto, but Flora caused
a registration fictitious birth (making it appear that Teofista was the
child of Presentacion’s parents). RTC and CA declared the birth
certificate null and void ab initio. SC affirms. A birth certificate may
be ordered cancelled upon adequate proof that it is fictitious. Thus,
void is a certificate which shows that the mother was already 54
years old at the time of the child's birth and which was signed
neither by the civil registrar nor by the supposed mother. Because
her inheritance rights are adversely affected, the legitimate child of
such mother is a proper party in the proceedings for the
cancellation of the said certificate.
ALBA v. CA (2005)
SUMMARY: Herrera filed a petition for cancellation of entries in the
birth certificate of Rosendo which indicate him as the father. The
RTC then issued an Order setting the petition for hearing and
caused its publication. Notice of the Order to Rosendo and the
mother, Armi, was personally served but it failed because
apparently they did not live in the address. RTC later granted
Herrera’s petition. When Armi found out, she filed a petition for
annulment of judgment on the ground of lack of jurisdiction and
extrinsic fraud. Re lack of jurisdiction, SC held that jurisdiction over
person is not necessary in actions quasi in rem such as the present
petition for correction of entries in the birth certificate. In such
actions, filing of the petition vests the court with jurisdiction and
publication suffices to comply with the due process requirement.
Publication of the notice also binds the whole world to the decision.
Re extrinsic fraud, such was not proven. Furthermore, Armi failed
to establish the merits of her petition. She failed to show that
anything would be achieved if the RTC judgment would be annulled.
Illegitimate children unrecognized by their fathers such as the
minor in this case, are required to use the surname of their
mothers.

BRAZA v CITY CIVIL REGISTRAR OF HIMAMAYLAN CITY (2009)

SUMMARY: Cristina and her children, the legitimate family of
deceased Pablito Braza, filed a petition to correct entries in the
birth record of Patrick, which contained that he was acknowledged
by Pablo and that he was legitimated by virtue of the marriage of
Pablo and Lucille in April 1998. Trial court dismissed. Court held
that the trial court has no jurisdiction to nullify marriages and rule
on legitimacy and filiation in a special proceeding under Rule 108.
The proceeding contemplated in Rule 108 (ROC), vis a vis CC 412,
may generally be used only to correct clerical, spelling,
typographical and other innocuous errors in the civil registry. A
clerical error is one which is visible to the eyes or obvious to the
understanding; an error made by a clerk or a transcriber; a mistake
in copying or writing, or a harmless change such as a correction of
name that is clearly misspelled or of a misstatement of the
occupation of the parent.

RA 9048 as amended by RA 10172

General Rule: entry in civil registry shall be corrected or changed

with judicial order

Exception:
1. Clerical or typographical errors
2. Change of first name or nickname, day and month of birth or sex
where it is patently clear that there was a clerical or typographical
error or mistake in the entry, which can be corrected or changed by
concerned city or municipal registrar or consul general

Clerical or typographical error: A mistake committed in

performance of clerical work in writing, copying, transcribing or
typing an entry in the civil register that;
1. Is harmless and innocuous
2. Is visible to the eyes or obvious to the understanding
3. Can be corrected or changed only by reference to other
existing records
4. Does not involve change of nationality, age, status or sex of
petitioner

60
PART SEVEN: INSOLVENCY AND FINANCIAL REHABILITATION OF NATURAL AND JURIDICAL PERSONS AND
VOLUNTARY DISSOLUTION OF CORPORATIONS
XIX: FINANCIAL REHABILITATION
3 Types Of Rehabilitation
1. Court supervised rehab
2. Pre-negotiated rehab
3. Out-of-court rehab
Court Supervised Rehabilitation
Step 1: Initiation Of Proceedings
*May either be voluntary or involuntary
Voluntary
Who may initiate – sole proprietor, majority of partners, majority of
board with authorization from 2/3 of OCS, a group of debtors
Involuntary
Who may initiate – any creditor or group of creditors with an
aggregate claim of at least 1 million or 25% of subscribed capital
stock, whichever is higher
Step 2: Court Action On Petition
If the court finds the petition is sufficient in form and substance, it
shall issue a commencement order which shall vest the rehab
receiver with powers to access, review, obtain records, and shall be
basis to sort of freeze any activity concerning assets of the
corporation after commencement date. A stay and suspension
order will also be issued to stay enforcement of claims, judgments,
sale of property, and payment of liabilities.
The commencement order shall contain a list of creditors and their
claims. Any creditor not yet part of the list shall file their claim within
5 days before first hearing fixed by commencement order.
Step 3: Compliance With Commencement Order
Rehab receiver is appointed to handle the affairs of the corporation
and evaluate financial condition. Publication of proceedings in
newspapers and notice to creditors shall be made. Creditors then
submit their claims and a rehabilitation plan will be created.
Step 4: Report Of Rehab Receiver
The rehab receiver will then submit a report within 40 days from
initial hearing on the financial condition of the company. The court
will then rule on the report:
1. Give due course to petition if debtor is insolvent and there is
substantial likelihood that debtor can be rehabilitated
2. Dismiss petition if debtor is not insolvent, petition is only to
delay enforcement of rights, the petition contains false and
misleading statements, and debtor committed
misrepresentation to its creditors
3. Convert proceedings to liquidation if debtor is insolvent and
there is no likelihood that he can be rehabilitation.
If the petition is given due course, rehab receiver will meet with
debtor and creditors to discuss the rehab plan. The rehab plan will
then be submitted to the creditors for approval and to the court for
approval.
PANLILIO v CA (2011)
SUMMARY: Petitioners are officers of Silahis International Hotel.
They filed a Petition for Suspension of Payments and Rehabilitation
with RTC Branch 24 which issued an Order staying all claims
against SIHI. At that time, there were criminal charges for violations
of SSS Law (non-remittance of SSS contributions by employers) in
relation to Art 315, RPC (ESTAFA) pending before RTC Branch 51.
Petitioners filed a Motion to Suspend Proceedings w/ Branch 51,
61
claiming that the Stay Order covers criminal charges. SC held that
“claims” do not include criminal charges filed against the officers
of a distressed corporation. Being criminal charges, public interest
requires that the acts be immediately investigated for the
protection of the society. The prosecution of the officers shall have
no bearing on the rehabilitation proceedings especially since they
are charged in their individual capacities. The rehabilitation
receiver is not required to defend the officers thus he shall still be
able to fully discharge his functions under the law. Lastly, any civil
indemnity awarded in the criminal case will be subject to the
suspension order.
YNGSON v PNB (2012)
SUMMARY: ARCAM defaulted on its obligations to PNB. PNB
initiated foreclosure proceedings. The company filed a Petition for
Suspension of
Payments, Appointment of a Management or Rehabilitation
Committee, and Approval of Rehabilitation Plan. The SEC issued
order enjoining PNB and the Sheriff from proceeding with the
foreclosure sale of the mortgaged properties. Later, the SEC ruled
that ARCAM can no longer be rehabilitated and decreed that
ARCAM be dissolved and placed under liquidation. PNB resumed
the proceedings for the extrajudicial foreclosure sale of the
mortgaged properties and it emerged as the highest bidder. ARCAM
is now seeking to nullify the auction sale. The SC held that PNB
elected to maintain its rights under the security or lien; hence, its
right to foreclose the mortgaged properties should be respected.
The court has already settled the above question and upheld the
right of the secured creditor to foreclose the mortgages in its favor
during the liquidation of a debtor corporation
CHINA BANKING v. CEBU PRINTING
SUMMARY: CEPRI filed a petition for rehabilitation with the Cebu
RTC. A stay order was issued against the enforcement of all claims
against CEPRI. A receiver was also appointed by the court. All these
were issued pending the hearing of the petition. Chinabank filed an
opposition to the rehab of CEPRI. Later on, RTC denied the petition
for rehab as it found out that CEPRI was in a state of insolvency.
CEPRI went to the CA and filed a Rule 65 (note that this was filed
beyond the reglementary period). CA denied. CEPRI filed an MR to
the CA. CA reconsidered, reversed itself and reversed the RTC
ruling. The stay order and the appointment of receiver order were
restored by the CA. The SC held that the CA erred when it reversed
itself and considered the Rule 65 petition a rule 45 petition.
DOCTRINE
 Petition for Rehabilitation is a special proceeding, Rule 43
applies.
 A Rule 65 petition cannot be considered Rule 45 petition, as a
general rule. Exceptions:
 If the petition for certiorari was filed within the reglementary
period within which to file a petition for review on certiorari;
o When errors of judgment are averred; and
o When there is sufficient reason to justify the
relaxation of the rules.
 The findings of fact of the RTC as a commercial court should
be given weight. The trial court, acting in its capacity as a
commercial court, has the expertise and knowledge over
matters under its jurisdiction and is in a better position to pass
judgment thereon. It is no different than that of administrative
departments and, as such, its findings of fact are generally
accorded respect, if not finality.
XX. VOLUNTARY DISSOLUTION OF CORPORATIONS
CORPO CODE, Section 118. Voluntary dissolution where no
creditors are affected.
1. majority vote of board
2. 2/3 vote of OCS
3. after publication of the notice of time, place and object of the
meeting for 3 consecutive weeks in a newspaper published in the
place where the principal office of said corporation is located, if
none, then in a newspaper of general circulation in the Philippines,
after sending such notice to each stockholder or member either by
registered mail or by personal delivery at least 30 days prior to said
meeting. A copy of the resolution authorizing the dissolution shall
be certified by a majority of the board of directors or trustees and
countersigned by the secretary of the corporation
4. SEC issues certificate of dissolution
Section 119. Voluntary dissolution where creditors are affected. –
1. Petition for dissolution shall be filed with the SEC, signed by a
majority of its board of directors or trustees or other officers having
the management of its affairs, verified by its president or secretary
or one of its directors or trustees, and shall set forth all claims and
demands against it, and that its dissolution was resolved upon by
the affirmative vote of 2/3 OCS
2. If the petition is sufficient in form and substance, the
Commission shall, fix a date for objections to be filed by any person,
Not less than 30 or more than 60 days after entry of order. Before
such date, a copy of the order shall be published at least once a
week for 3 consecutive weeks in a newspaper of general circulation
published where the principal office of the corporation is situated,
if none, then in a newspaper of general circulation in the
Philippines, and a similar copy shall be posted for 3 consecutive
weeks in 3 public places in such municipality or city.
3. Upon 5 days’ notice, given after the date on which the right to file
objections as fixed in the order has expired, the Commission shall
proceed to hear the petition and try any issue made by the
objections filed; and if no such objection is sufficient, and the
material allegations of the petition are true, it shall render judgment
dissolving the corporation and directing such disposition of its
assets as justice requires, and may appoint a receiver to collect
such assets and pay the debts of the corporation.
Section 120. Dissolution by shortening corporate term. – A
voluntary dissolution may be effected by amending the articles of
incorporation to shorten the corporate term. A copy of the amended
articles of incorporation shall be submitted to the Securities and
Exchange Commission. Upon approval of the amended articles of
incorporation of the expiration of the shortened term, the
corporation shall be deemed dissolved without any further
proceedings
Section 121. Involuntary dissolution. – A corporation may be
dissolved by the Securities and Exchange Commission upon filing
of a verified complaint and after proper notice and hearing on the
grounds provided by existing laws, rules and regulations.
Section 122. Corporate liquidation. –
Corporation dissolved shall have 3 years corporate existence for
the purpose of prosecuting and defending suits by or against it and
enabling it to settle and close its affairs, to dispose of and convey
its property and to distribute its assets, but not for the purpose of
continuing the business for which it was established.
The corporation may convey all of its property to trustees for the
benefit of stockholders, members, creditors, and other persons in
interest. From and after any such conveyance all interest which the
62
corporation had in the property terminates, the legal interest vests
in the trustees, and the beneficial interest in the stockholders,
members, creditors or other persons in interest.
Upon the winding up of the corporate affairs, any asset
distributable to any creditor or stockholder or member who is
unknown or cannot be found shall be escheated to the city or
municipality where such assets are located.
Except by decrease of capital stock and as otherwise allowed by
this Code, no corporation shall distribute any of its assets or
property except upon lawful dissolution and after payment of all its
debts and liabilities.
VESAGAS v. CA (2001)
SUMMARY: A complaint by the Raniel Spouses was filed with the
SEC due to their summary expulsion from a tennis club. Vesagas,
the President and Asis, the VP and Legal Counsel filed an MTD
alleging the SEC’s lack of jurisdiction because the said tennis club
was never a corporation since its inception, and if indeed it was, it
ceased to be one after a Board Resolution calling for its dissolution
was passed. The SC denied their claim. The requirements
mandated by the Corporation Code should have been strictly
complied with by the members of the club, which the petitioner’s
failed to follow.
DOCTRINE
Requirements for voluntary dissolution*:
(1) Does not prejudice rights of any creditor;
(2) Majority vote of the Board
(3) Affirmative vote of 2/3 OCS or members in a meeting called for
such purpose
(4)Notice of meeting should be published in a newspaper in the
place where the principal office is located (or if none, newspaper of
general circulation) for 3 consecutive weeks (LACKING)
(5) Notice also given personally or by mail 30 days before the
meeting (LACKING)
(6) A copy of the resolution authorizing the dissolution shall be
certified by a majority of the board of directors or trustees and
countersigned by the secretary (LACKING)
(7)SEC issues the certificate of dissolution. (LACKING)
’
PART EIGHT: PROCEEDINGS IN RELATION ADR

XXII. SPECIAL ADR RULES

Check AM 07-11-08, RA 876

PART NINE APPEALS

XXII. APPEALS
Proceeding Mode of appeal
A. Judgments & orders for which appeal may be taken
Settlement of estate (except
Record on Appeal
appointment of special admin)
1. Allows or disallows a will
2. Determines who are the lawful heirs of a deceased person, or Appointment of special admin R65
the distributive share of the estate to which such person is
entitled Escheat Record on appeal
3. Allows or disallows, in whole or in part, any claim against the
estate of a deceased person, or any claim presented on behalf Trustee Record on appeal
of the estate in offset to a claim against it Absentee Record on appeal
4. Settles the account of an executor, administrator, trustee or
guardian Martial relations (nullity,
MR then R41
5. Constitutes, in the proceedings relating to the settlement of annulment, leg sep)
the estate of deceased, or administration of a trustee or guardianship Record on appeal
guardian, a final determination in the lower court of the rights Ordinary appeal within 48
of the party appealing, except that no appeal shall be allowed WHC
hours
from appointment of a special administrator R45 on fact and/or law 5
*Remedy for appointment of special admin is r65 Amparo and Habeas Data
working days
6. Final order or judgment rendered in the case and affects
substantial rights of the person appealing, unless it be an Change of name Notice of appeal
order granting or denying a motion for a new trial or for
Cancellation of entries in registry Notice of appeal
reconsideration
FRIA Rule 43

B. Mode of appeal and When to appeal C. Rule on advance distribution

RULE 41, Section 2 (a)
… no record on appeal shall be required except in special
proceedings and other cases of multiple or separate appeals where
the law or these rules so require.
RULE 41, Section 3
Where a record on appeal is required, the appellants shall file a
notice of appeal and a record on appeal within 30 days from notice
of judgment or final order. However, appeal in habeas corpus cases
shall be taken within 48 hours from notice of judgment or final
order appealed from.
Period shall be interrupted by timely motion for new trial or
reconsideration. No motion for extension to file motion for new trial
or reconsideration shall be allowed.
63
Notwithstanding pending controversy or appeal in proceedings to
settle estate of decedent, court may, in its discretion and upon such
terms as it may deem proper and just, permit that such part of the
estate as may not be affected by the controversy or appeal be
distributed among the heirs or legatees, upon compliance with the
conditions set forth in R90 of these rules. (r109 s2)
RP v. NISHINA (2010)
SUMMARY: Respondent filed a petition for the cancellation of birth
record and change of surname in the civil registry. This was granted
by the RTC, but opposed by RP, thus the latter filed a notice of
appeal before CA. Respondent filed a MTD, claiming that petitioner
must file a record on appeal in addition to the notice. SC held that
petitioner is no longer required to file a record on appeal. The rule
being invoked by respondent contemplates multiple appeals during
the pendency of special proceedings. A record on appeal in addition
to the notice of appeal is thus required to be filed as the original
records of the case should remain with the TC to enable the rest of
the case to proceed in the event that a separate and distinct issue
is resolved by the court and held to be final. CAB, the filing of a
record on appeal was not necessary since no other matter
remained to be heard and determined by the TC after it issued the
appealed order granting respondent’s petition for cancellation.
 LEBIN v. MIRASOL (2011)
SUMMARY: The RTC resolved to award a lot to both the petitioner
and respondent in equal parts. The petitioner filed a notice of
appeal in the RTC on Mar. 27, 1998. On May 5, 1998, they also
filed a record on appeal. The respondent filed a motion to dismiss
the appeal on the ground that the record on appeal was filed late.
The RTC granted the motion to dismiss the appeal.
SC held that the record on appeal was filed 22 days beyond the
reglementary period. The statutory nature of the right to appeal
requires the one who avails himself of it to strictly comply with the
statutes or rules that are considered indispensable interdictions
against needless delays and for an orderly discharge of judicial
business. CAB: The failure of the petitioners and their counsel to
file their record on appeal on time rendered the orders of the RTC
final and unappealable. Thereby, the appellate court lost the
jurisdiction to review the challenged orders, and the petitioners
were precluded from assailing the orders.
RP v. CA (2005)
SUMMARY: Apolinaria Malinao Jomoc filed a petition for the
presumptive death of her husband, Clemente Jomoc; it was granted
by the RTC. The RP sought to appeal the order by filing a notice of
appeal. The RTC disapproved the notice of appeal, contending that
the case was a special proceeding, which required a record on
appeal in addition to the notice of appeal. MR by RP denied. RP
filed a petition for certiorari with the CA; CA denied the petition,
basically affirming the RTC. SC held in RP’s favor. By the trial court’s
citation of FC 41, it is gathered that Apolinaria’s petition had for its
purpose her desire to contract a valid subsequent marriage. Ergo,
the petition for that purpose is a summary proceeding, pursuant to
said provision, and NOT a special proceeding. Thus, a notice of
appeal suffices.
Under A.M. No. 00-8-10-SC, a petition for corporate rehabilitation is
a special proceeding. The period of appeal provided in par.19(b) of
the Interim Rules Relative to the Implementation of BP 129 for
special proceedings shall apply—the period of appeal shall be 30
days since a record of appeal is required. Filing of the notice of
appeal was not sufficient because at the time of its filing, the Rules
required the filing of the record on appeal and not merely a notice
of appeal.
RUIZ v. CA (1996)
SUMMARY: Hilario Ruiz’ will names as heirs: his only son Edmond
(petitioner), his adopted daughter, and his 3 granddaughters
(private respondents). After the will was admitted to probate, but
before it settled its estate taxes, the probate court granted the
release of the titles of bequeathed property to respondents 6
months after publication of “notice to creditors.” The CA affirmed.
The SC reversed this order. An order releasing titles to properties of
the estate amounts to an advance distribution of the estate and is
allowed only under the conditions stated in Rule 90, ROC. CAB:
though Hilario Ruiz allegedly left no debts when he died, taxes on
his estate had not been paid, much less ascertained. The estate tax
is one of those obligations that must be paid before distribution of
the estate. If not yet paid, the rule requires that the distributees
post a bond or make such provisions as to meet the said tax
obligation in proportion to their respective shares in the
inheritance. Notably, at the time the order was issued the
properties of the estate had not yet been inventoried and
appraised.

BANEZ v. BANEZ (2002)

SUMMARY: Aida filed for legal separation against Gabriel. RTC
decreed legal separation, so Gabriel filed Notice of Appeal. Aida
filed an MTD the appeal for not filing a record of appeal under Rule
41. MTD denied, as upheld by the SC. An action for legal separation
is NOT one where multiple appeals are allowed. Multiple appeals
are allowed the same case in order to enable the rest of the case
to proceed in the event that a separate and distinct issue is
resolved by the court and held to be final.
This is applicable in an action for legal separation since the issues
involved in the case will necessarily relate to the same marital
relationship between the parties. The effects of legal separation,
such as entitlement to live separately, dissolution and liquidation
of the absolute community or conjugal partnership, and custody of
the minor children, follow from the decree of legal separation. They
are not separate or distinct matters that may be resolved by the
court and become final prior to or apart from the decree of legal
separation. Rather, they are mere incidents of legal separation.

BPI v. PRYCE GASES (2011)

SUMMARY: Pryce Gases (PGI) filed a petition for rehabilitation with
the Makati RTC. Under the plan, its sustainable debt would be
rescheduled as senior loans. Based on the proposal, PGI’s loan
from BPI Family Savings Bank (BFB) shall be paid in 10 years. The
RTC granted this. PGI informed the RTC that Pryce Corp. had offered
to help through dacion en pago of its real estate assets to PGI’s
creditors. BFB objected to dacion en pago as a mode of payment,
stating that BFB’s exposure to PGI was secured by assets that were
considered non-operating and not critical to the rehabilitation plan.
RTC: approved this. BFB filed a notice of appeal on Nov. 3, 2003,
which it dismissed, ruling that the law clearly states that in special
proceedings, record on appeal is required to perfect the appeal. SC: ’ ’
64
ANNEX A: TABLE 0F JURISDICTION AND VENUES
Special Proceeding Venue Jurisdiction
Settlement of the Estate of a Residence of the decedent MTC if gross value of the estate
Deceased Person If non-resident, place where he had an estate does not exceed P300,000, or
does not exceed P400,000 in
Metro Manila
otherwise, RTC
Escheat Person dies intestate leaving no heir – Residence of the RTC
decedent or if non-resident, place where he had estate
Reversion – where land lies in whole or in part RTC
Unclaimed Balances Act – where deposits are located RTC
Appointment of Guardians Where minor resides Family Court
Where incompetent resides RTC
Appointment of Trustees Where will was allowed or RTC
Where the property or portion thereof affected by the trust
is situated
Adoption Domestic – where adopter resides Family Court
Inter-country Adoption – ICAB or, where adoptee resides if ICAB or Family Court
filed with the Family Court
Rescission of Adoption Where adoptee resides Family Court
Habeas Corpus If filed with RTC, where detainee is detained SC, CA, RTC, MTC in the province
or city in case there is no RTC
judge
Sandiganbayan, only in aid of its
appellate jurisdiction
For the custody of minors, where petitioner resides or Family Court, CA, SC
where minor may be found
Habeas Data Where the petitioner or respondent resides, or that which RTC generally
has jurisdiction over the place where the data or If concerning public data files or
information is gathered, collected, or stored, at the option government offices, SC, CA or
of the petitioner Sandigabayan
Amparo Where the threat, act or omission was committed or any of RTC, Sandiganbayan, CA, SC or
its elements occurred any justice thereof
Change of Name Judicial - where petitioner resides RTC
Administrative: Local Civil Registry/ Philippine
 Local civil registry where the record sought to be consulate
changed is kept
 Local civil registry of the place of residence of the
interested party (only if petitioner migrated to
another place in the Philippines and it is
impractical to file where records sought to be
changed are kept)
 Philippine consulates only for non-resident citizen
Appointment of Representative Where Absentee resides before his disappearance RTC
of Absentee / Declaration of
Absence
Cancellation / Correction of Judicial - Where corresponding civil registry is located RTC
Entries in Civil Registries Administrative - Same as change of name Local Civil Registry/ Philippine
consulate
Petition for declaration of Where petitioner or respondent has been residing for at Family Court
nullity, annulment, legal least 6 months prior to the date of filing
separation If non-resident petitioner, where he may be found at the
election of the petitioner

65
ANNEX B: SETTLEMENT OF ESTATE FLOWCHART

DEATH
(Art. 777, NCC)

JUDICIAL EXTRA-JUDICIAL
SETTLEMENT OF SETTLEMENT OF
ESTATE ESTATE (R74)

SUMMARY
SETTLEMENT OF More than one heir One heir
ESTATE OF SMALL
VALUE

PARTITION Division via a Affidavit of Self-

public instrument Adjudication filed
(R69) filed with the RD with the RD

TESTATE Publication of the Publication of the

PROCEEDINGS fact of Notice of fact of Notice of
(R75-79) Extra-J. Settlement Extra-J. Settlement

INTESTATE Bond equivalent to Bond equivalent to

PROCEEDINGS the value of the the value of the
(R79) property involved property involved

66
ANNEX C: JUDICIAL SETTLEMENT PROCEEDINGS FLOWCHART
HEARING
PETITION FOR ALLOWANCE OF WILL
PETITIONER  Proof of notice of hearing
1. Executor  Evidence of Petitioner
2. Legatees/Devisees named in the Will 1. Death of decedent
3. Interested person 2. Residence at the time of death
4. Creditor TESTATE
5. Testator himself 1. Testimonies of subscribing witnesses
WHEN TO FILE  Notarial will: 1 subscribing witness sufficient
 Post-mortem: Anytime o Contested: all subscribing witnesses and notary
 Ante-mortem: During testator’s lifetime who notarized the will
CONTENTS OF PETITION  Holographic will: at least 1 witness who knows the
1. Jurisdictional Facts handwriting and signature of testator to affirm will and
2. Names, ages & addresses of heirs, legatees, and devisees signature
3. Probable value and character of estate o Contested: at least 3 witnesses testify
4. Name of person for whom Letters are prayed for 2. Proof when Testator is Petitioner
5. Name of person having custody of the will  Holographic will: sufficient for testator to affirm will and
signature
o Contested: burden on the contestant
3. Proof of lost or destroyed will
 Execution and validity of the will
COURT ORDER
 Will exists at the time of death or shown to have been
 Fix time and place of hearing
fraudulently or accidentally destroyed during testator’s
 Publication of Notice lifetime w/o his knowledge
 Lost will:
o Provisions distinctly stated
PUBLICATION AND NOTICE o Certified by judge
PUBLICATION o Certificate filed and recorded
 Once a week for three consecutive weeks in a newspaper of INTESTATE
general circulation. 1. Decedent left no will or there is no competent executor
NOTICE 2. Petitioner is qualified for appointment
 Mail: 20 days before schedule hearing
 Personal service: 10 days before hearing
 To known heirs, legfatees, devisees, and executor, creditors
and other interested persons CERTIFICATE OF ALLOWANCE
 If Petitioner is the Testator notice given only to compulsory  Issued by the judge
heirs  Signed by the judge
 Attested by seal of the court

FILE AND RECORD

 By CoC: Will and certificate of allowance
 RD: Attested copies of the will and certificate of allowance

ISSUANCE OF LETTERS TESTAMENTARY

 Executor named in the will who accepts the trusts and gives a
bond
ISSUANCE OF LETTERS OF ADMINISTRATION
 No executor named in the will, who accepts the trusts and
gives a bond
 Intestacy

PUBLICATION OF NOTICE OF FILING CLAIMS

PERIOD FOR FILING CLAIMS

ISSUANCE OF ORDER OF PAYMENT OR SALE OF PROPERTIES

PAYMENT OF CLAIMS: SALE/MORTGAGE/ENCUMBRANCES

DISTRIBUTION OF ESTATE

67
ANNEX D: CLAIMS AGAINST ESTATE FLOWCHART

Granting of letters testamentary of administration [RULE 78]

Court to issue a notice requiring all persons having money claims against the decedent to file them in the
office of the clerk of court [SEC. 1, RULE 86]

Publication of notice to creditors [SEC. 3, RULE 86]

Creditors to deliver the claim with the necessary vouchers to the clerk of court and serve copies thereof on
the executors/administrator [SEC. 9, RULE 86]

Claim is due – Claim is not yet due or contingent –

Affidavit stating: Affidavit stating the particulars thereof.
(1) The amount due [Sec. 9, Rule 86]
(2) That no payments have been made
thereon and that there are no offsets
to the same [SEC. 9, RULE 86]

Answer of executor or administrator within 15 days after service of the copy of the claim
[SEC. 10, RULE 86]

Disposition of admitted claim Trial of contested claim

[SEC. 11, RULE 86] [SEC. 12, RULE 86]

Court approval Court may order

without hearing known heirs to Filing of answer to claim
[SEC. 11, RULE be notified and [SEC. 10, RULE 86]
86] heard
[SEC. 11, RULE
86]
Claim referred to the Comissioner
Opposition [SEC. [SEC. 12, RULE 86]
11, RULE 86]

68
ANNEX E: ESCHEAT FLOWCHART
Filing of petition by Solicitor-General or his
representative
Court order for hearing
Publication of the order for hearing
Hearing on jurisdictional requirements
-------then---------
Hearing on the main case
Order of payment of debts and charges
Court order granting the petition
[Assignment of estate]
Establishment of a permanent
(optional)
Filing of claims
ANNEX F: TRUSTEES
Filing of petition to appoint trustee
No order of hearing
No publication of order
Service of notice to interested persons
Appointment of the trustee
Filing of bond
 If deceased was a Philippine resident: RTC of the province where he
last resided
 If deceased was not a Philippine resident: RTC of the province where
he had estate
 Fix the date and place (Ma’am says this is immaterial because place
of hearing is already fixed).
 Hearing shall not be more than 6 months from entry of order.
 At least once a week for 6 successive weeks
 In some newspaper of general circulation published in the province.
Petitioner must:
1. show proof of publication
2. establish that the person
- died intestate
- was seized of real or personal property in the Philippines
- left no heir or person entitled to the same
After payment of just debts and charges, Court shall adjudge that the
estate shall escheat.
If deceased resided in the Philippines:
 Personal estate is assigned to the municipality/city where the
deceased last resided.
 Real estate is assigned to the municipalities/cities in which they are
located.
If deceased never resided in the Philippines:
 Whole estate may be assigned to the respective cities/municipalities
where the same is located
 For the benefit of public schools and public charitable institutions and
centers in said cities/municipalities
trust  At the instance of an interested party; or
 On court’s own motion
Court may order the establishment of a permanent trust so that only the
income from the property shall be used.
 By devisee, legatee, heir, widow, widower, or other person entitled to
the estate
 Within 5 years from date of judgment. If not filed, will be forever
barred.
 RTC in which the will is allowed; or
 RTC of the province in which the property affected by the trust is
situated
 Ma’am says there should be an order of hearing if a will is involved.
 May be made by publication, but not explicitly required.
 In an amount fixed by the court, payable to the Government of the
Philippines.
 Failure to file a bond shall be considered as declining or resigning the
trust.
69
ANNEX G: ABSENTEES
Filing of petition to appoint provisional
representative by:
1. Any interested party
2. Absentee’s relative
3. Absentee’s friend
or petition to declare presumptive death by:
1. Spouse present
2. Heirs instituted in a will, who may present
an authentic copy of the same
3. Relative who would succeed by the law of
intestacy
4. Those who have over the property of the
absentee some right subordinated to the
condition of his death
Note: Petition for declaration of presumptive
death is not a stand-alone petition, except
for purpose of remarriage (FC 41)
Court order for hearing
Service of the notice of the time and place
of hearing
Publication of the notice of the time and
place of hearing
Opposition
Hearing on jurisdictional requirements
Hearing on the main case
Court order granting the petition
Publication of the order in case of
declaration of absence
Contents:
1. Jurisdictional facts
2. Names, ages, and residences of the heirs instituted in the will and
of the relatives who would succeed by intestacy
3. Names and residences of creditors and others who may have any
adverse interest over the property of the absentee
4. Probable value, location, and character of the property of the
absentee
Venue: In a petition to appoint representative: RTC where the absentee
resided before his disappearance
Fix a date and place for the hearing where all concerned may appear to
contest the petition
 Must be served upon all known heirs, legatees, devisees, creditors,
and other interested persons
 At least 10 days before the hearing
 Once a week for 3 consecutive weeks prior to the time designated for
hearing
 In a newspaper of general circulation in the province/city where the
absentee resides
Oppositor must:
1. state in writing his grounds
2. serve a copy of his opposition
- on the petitioner and other interested parties
- on or before the date designated for the hearing.
Petitioner must prove compliance with the requirements.
Petitioner must satisfactorily prove the allegations in the petition.
Court shall:
 appoint the representative, trustee, or administrator for the absentee
 safeguard the rights and interests of absentee
 specify the powers, obligations, and remuneration of the
representative, trustee, or administrator, regulating them by rules
concerning guardians.
 In a newspaper of general circulation designated by the court and in
the Official Gazette
 The order will only take effect 6 months after such publication.
70
ANNEX H: AM No. 02-11-10-SC (Mar 2003) RULES ON DECLARATION OF NULLITY AND ANNULMENT OF MARRIAGES
 Petitions for declaration of absolute nullity of void marriages
Scope
 Petitions for annulment of voidable marriages
Nullity:
 Solely by the husband or wife
Annulment:
1. The contracting party whose parent, or guardian, or person exercising substitute parental authority did not give his
or her consent, within five years after attaining the age of twenty-one unless, after attaining the age of twenty-one,
such party freely cohabitated with the other as husband or wife; or the parent, guardian or person having legal charge
of the contracting party, at any time before such party has reached the age of twenty-one;
2. The sane spouse who had no knowledge of the other's insanity; or by any relative, guardian, or person having legal
charge of the insane, at any time before the death of either party; or by the insane spouse during a lucid interval or
after regaining sanity, provided that the petitioner, after coming to reason, has not freely cohabited with the other
as husband or wife;
Who may file
3. The injured party whose consent was obtained by fraud, within five years after the discovery of the fraud, provided
that said party, with full knowledge of the facts constituting the fraud, has not freely cohabited with the other as
husband or wife;
4. The injured party whose consent was obtained by force, intimidation, or undue influence, within five years from the
time the force, intimidation, or undue influence disappeared or ceased, provided that the force, intimidation, or
undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other as
husband or wife;
5. The injured party where the other spouse is physically incapable of consummating the marriage with the other and
such incapacity continues and appears to be incurable, within five years after the celebration of marriage; and
6. The injured party where the other party was afflicted with a sexually-transmissible disease found to be serious and
appears to be incurable, within five years after the celebration of marriage.
Prescription An action or defense for the declaration of absolute nullity of void marriage shall not prescribe.
 Complete facts showing that either or both parties were psychologically incapacitated from complying with the
essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes
What to allege
manifest only after its celebration.
(FC 36 petition)
 Physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the
marriage but expert opinion need not be alleged.
 Family Court of the province or city where the petitioner or the respondent has been residing for at least six months
prior to the date of filing,
 Or in the case of a non-resident respondent, where he may be found in the Philippines, at the election of the
Venue petitioner.
 In stations where no branches of the Regional Trial Court are designated as Family Courts, the cases falling within
the jurisdiction of the Family Courts shall be raffled among the branches of the Regional Trial Court with the same
station (OCA Circular No. 96-03)
1. Complete facts constituting the cause of action.
2. Names and ages of the common children of the parties; the regime governing their property relations, as well as the
properties involved.
If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional
order for spousal support, custody and support of common children, visitation rights, administration of community or
conjugal property, and other matters similarly requiring urgent action.
3. Verified and accompanied by a certification against forum shopping. The verification and certification must be
Contents and
signed personally by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact.
form of petition
If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by
the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent
in said country.
4. Filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the
Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of
such service within the same period.
Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of the petition.
The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules:
1. Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be
ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by publication once
a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such places as the
court may order. In addition, a copy of the summons shall be served on the respondent at his last known address
by registered mail or any other means the court may deem sufficient.
Summons
2. The summons to be published shall be contained in an order of the court with the following data:
a. title of the case;
b. docket number;
c. nature of the petition;
d. principal grounds of the petition and the reliefs prayed for; and
e. a directive for the respondent to answer within thirty days from the last issue of publication.

71
 No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or
Motion to
over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as
dismiss
an affirmative defense in an answer.
The respondent shall file his answer within fifteen days from service of summons, or within thirty days from the last issue
of publication in case of service of summons by publication. The answer must be verified by the respondent himself and
not by counsel or attorney-in-fact.
Answer (8)
If the respondent fails to file an answer, the court shall not declare him or her in default.

Where no answer is filed or if the answer does not tender an issue, the court shall order the public prosecutor to
investigate whether collusion exists between the parties.
Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor
shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and
their respective counsels, if any.
Investigation
If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their
report of public
respective comments on the finding of collusion within ten days from receipt of a copy of the report. The court shall set
prosecutor
the report for hearing and if convinced that the parties are in collusion, it shall dismiss the petition.

If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of
the public prosecutor to appear for the State at the pre-trial.
The court may require a social worker to conduct a case study and submit the corresponding report at least three days
Social worker
before the pre-trial. The court may also require a case study at any stage of the case whenever necessary.
A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served
and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties.

Notice of pre-trial.—
a. The notice of pre-trial shall contain:
i. the date of pre-trial conference; and
Pre-trial
ii. an order directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure
the receipt thereof by the adverse party at least three days before the date of pre-trial.
b. The notice shall be served separately on the parties and their respective counsels as well as on the public
prosecutor. It shall be their duty to appear personally at the pre-trial.
c. Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication
and the respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address.
1. A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the
desired terms thereof;
2. A concise statement of their respective claims together with the applicable laws and authorities;
3. Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues;
Contents of pre- 4. All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose
trial brief thereof;
5. The number and names of the witnesses and their respective affidavits; and
6. Such other matters as the court may require.
Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at
the pre-trial under the succeeding paragraphs.
If the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly authorized
representative appears in court and proves a valid excuse for the non-appearance of the petitioner.
Effect of failure
If the respondent has filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public
to appear at pre-
prosecutor to investigate the non-appearance of the respondent and submit within fifteen days thereafter a report to the
trial
court stating whether his non-appearance is due to any collusion between the parties. If there is no collusion, the court
shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or
fabrication of evidence.
Court may refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited
by law.

The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a
Pre-trial
period not exceeding one month.
conference
In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which
occasion it shall consider the advisability of receiving expert testimony and such other matters as may aid in the prompt
disposition of the petition.
a. The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall issue a pre-trial
order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments
allowed on the pleadings, and, except as to the ground of declaration of nullity or annulment, the-agreements or
Pre-trial order
admissions made by the parties on any of the matters considered, including any provisional order that may be
necessary or agreed upon by the parties.
b. Should the action proceed to trial, the order shall contain a recital of the following:

72
 1. Facts undisputed, admitted, and those which need not be proved subject to Section 16 of this Rule;
2. Factual and legal issues to be litigated;
3. Evidence, including objects and documents, that have been marked and will be presented;
4. Names of witnesses who will be presented and their testimonies in the form of affidavits; and
5. Schedule of the presentation of evidence.
c. The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to
prevent collusion between the parties at any stage of the proceedings and fabrication or suppression of evidence
during the trial on the merits.
d. The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated in the
pre-trial order. The order shall control the trial of the case, unless modified by the court to prevent manifest injustice.
e. The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications.
a. The civil status of persons;
b. The validity of a marriage or of a legal separation;
Prohibited c. Any ground for legal separation;
compromise (16) d. Future support;
e. The jurisdiction of courts; and
f. Future legitime.
1. The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a
commissioner shall be allowed except as to matters involving property relations of the spouses.
2. The grounds for declaration of absolute nullity or annulment of marriage must be proved. No judgment on the
pleadings, summary judgment, or confession of judgment shall be allowed.
3. The court may order the exclusion from the courtroom of all persons, including members of the press, who do not
Trial have a direct interest in the case. Such an order may be made if the court determines on the record that requiring
a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological
harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the right of a
party to privacy; or would be offensive to decency or public morals.
4. No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any
person other than a party or counsel of a party, except by order of the court.
The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to
file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. It may
Memoranda require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No
other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the
case will be considered submitted for decision, with or without the memoranda.
1. If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or
decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code
as implemented under the Rule on Liquidation, Partition and Distribution of Properties.
2. The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision
personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the
dispositive part of the decision shall be published once in a newspaper of general circulation.
3. The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall
Decision
be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public prosecutor,
or the Solicitor General.
4. Upon the finality of the decision, the court shall forthwith issue the corresponding decree if the parties have no
properties.
If the parties have properties, the court shall observe the procedure prescribed in Section 21 of this Rule.
The entry of judgment shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry
where the Family Court granting the petition for declaration of absolute nullity or annulment of marriage is located.
No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial
within fifteen days from notice of judgment.
Appeal
An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days
from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of
appeal on the adverse parties.
Liquidation, Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the
partition and appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation,
distribution, partition and distribution of the properties of the spouses, including custody, support of common children and delivery
custody, support of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been
of common adjudicated in previous judicial proceedings.
children and
delivery of their
presumptive
legitimes.
a. The court shall issue the Decree after:
1. Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in
Issuance of the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family
decree Court is located;
2. Registration of the approved partition and distribution of the properties of the spouses, in the proper Register
of Deeds where the real properties are located; and

73
 3. The delivery of the children's presumptive legitimes in cash, property, or sound securities.
b. The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the
approved deed of partition.
Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar
to issue an amended birth certificate indicating the new civil status of the children affected.
a. The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered,
the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office.
He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree.
Registration and
b. In case service of summons was made by publication, the parties shall cause the publication of the Decree once in
publication of
a newspaper of general circulation.
decree
c. The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of
marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well
as the properties or presumptive legitimes delivered to their common children.
a. In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case
Effect of death closed and terminated, without prejudice to the settlement of the estate in proper proceedings in the regular courts.
of party b. If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding upon the parties
and their successors in interest in the settlement of the estate in the regular courts

ANNEX I: AM No. 02-11-11-SC (15 March 2003) RULES ON LEGAL SEPARATION

Scope Petitions for legal separation
Who may file Only the husband or wife
Within 5 years from the occurrence of any of the following:

a. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of
the petitioner;
b. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
c. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or inducement;
When to file
d. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
e. Drug addiction or habitual alcoholism of the respondent;
f. Lesbianism or homosexuality of the respondent;
g. Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the Philippines;
h. Sexual infidelity or perversion of the respondent;
i. Attempt on the life of petitioner by the respondent; or
j. Abandonment of petitioner by respondent without justifiable cause for more than one year.
 Family Court of the province or city where the petitioner or the respondent has been residing for at least six months
prior to the date of filing, or
 In the case of a non-resident respondent, where he may be found in the Philippines, at the election of the petitioner.
Where to file
 In stations where no branches of the Regional Trial Court are designated as Family Courts, the cases falling within the
jurisdiction of the Family Courts shall be raffled among the branches of the Regional Trial Court with the same station
(OCA Circular No. 96-03)
1. Complete facts constituting the cause of action.
2. Names and ages of the common children of the parties; the regime governing their property relations, as well as the
properties involved.
If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional
order for spousal support, custody and support of common children, visitation rights, administration of community or
conjugal property, and other matters similarly requiring urgent action.
Contents and 3. Verified and accompanied by a certification against forum shopping. The verification and certification must be signed
form of personally by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact.
petition If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by
the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in
said country.
4. Filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office
of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such
service within the same period.
Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of the petition.
The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules:
1. Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be
ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by publication once
a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such places as the
court may order. In addition, a copy of the summons shall be served on the respondent at his last known address by
registered mail or any other means the court may deem sufficient.
Summons
2. The summons to be published shall be contained in an order of the court with the following data:
a. title of the case;
b. docket number;
c. nature of the petition;
d. principal grounds of the petition and the reliefs prayed for; and
e. a directive for the respondent to answer within thirty days from the last issue of publication.
74
 No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or
Motion to
over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as an
dismiss
affirmative defense in an answer.
The respondent shall file his answer within fifteen days from service of summons, or within thirty days from the last issue
of publication in case of service of summons by publication. The answer must be verified by the respondent himself and
not by counsel or attorney-in-fact.
Answer
If the respondent fails to file an answer, the court shall not declare him or her in default.
Where no answer is filed or if the answer does not tender an issue, the court shall order the public prosecutor to investigate
whether collusion exists between the parties.
Within one month after receipt of the court order mentioned in paragraph (3) of the preceding section, the public prosecutor
shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and
their respective counsels, if any.
Investigation
report of If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their
public respective comments on the finding of collusion within ten days from receipt of a copy of the report. The court shall set the
prosecutor report for hearing and if convinced that the parties are in collusion, it shall dismiss the petition.

If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the
public prosecutor to appear for the State at the pre-trial.
The court may require a social worker to conduct a case study and submit the corresponding report at least three days
Social worker
before the pre-trial. The court may also require a case study at any stage of the case whenever necessary.
A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served
and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties.
Notice of pre-trial.—
a. The notice of pre-trial shall contain:
- the date of pre-trial conference; and
Pre-trial - an order directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure the
receipt thereof by the adverse party at least three days before the date of pre-trial.
b. The notice shall be served separately on the parties and their respective counsels as well as on the public
prosecutor. It shall be their duty to appear personally at the pre-trial.
c. Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication
and the respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address.
1. A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired
terms thereof;
2. A concise statement of their respective claims together with the applicable laws and authorities;
3. Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues;
Contents of 4. All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose
pre-trial brief thereof;
5. The number and names of the witnesses and their respective affidavits; and
6. Such other matters as the court may require.
Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the
pre-trial under the succeeding paragraphs.
a. If the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly authorized
representative appears in court and proves a valid excuse for the non-appearance of the petitioner.
Effect of
b. If the respondent has filed his answer but fails to appear, the court shall proceed with the pre-trial and require the
failure to
public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days thereafter a
appear at pre-
report to the court stating whether his non-appearance is due to any collusion between the parties. If there is no
trial
collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent
suppression or fabrication of evidence.
Court may refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited
by law.
The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a
Pre-trial
period not exceeding one month.
conference
In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion
it shall consider the advisability of receiving expert testimony and such other matters as may aid in the prompt disposition
of the petition.
a. The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall issue a pre-trial
order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments
allowed on the pleadings, and, except as to the ground of declaration of nullity or annulment, the-agreements or
admissions made by the parties on any of the matters considered, including any provisional order that may be
necessary or agreed upon by the parties.
Pre-trial order b. Should the action proceed to trial, the order shall contain a recital of the following:
1. Facts undisputed, admitted, and those which need not be proved subject to Section 16 of this Rule;
2. Factual and legal issues to be litigated;
3. Evidence, including objects and documents, that have been marked and will be presented;
4. Names of witnesses who will be presented and their testimonies in the form of affidavits; and
5. Schedule of the presentation of evidence.

75
 c. The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to
prevent collusion between the parties at any stage of the proceedings and fabrication or suppression of evidence
during the trial on the merits.
d. The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-
trial order. The order shall control the trial of the case, unless modified by the court to prevent manifest injustice.
e. The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications.
1. The civil status of persons;
2. The validity of a marriage or of a legal separation;
Prohibited 3. Any ground for legal separation;
compromise 4. Future support;
(13) 5. The jurisdiction of courts; and
6. Future legitime.
1. The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a
commissioner shall be allowed except as to matters involving property relations of the spouses.
2. The grounds for declaration of absolute nullity or annulment of marriage must be proved. No judgment on the
pleadings, summary judgment, or confession of judgment shall be allowed.
3. The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have
Trial a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party
to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or
inability to effectively communicate due to embarrassment, fear, or timidity; would violate the right of a party to privacy;
or would be offensive to decency or public morals.
4. No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any
person other than a party or counsel of a party, except by order of the court.
The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file
their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. It may
require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No
Memoranda
other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case
will be considered submitted for decision, with or without the memoranda.

Court shall deny petition on the following grounds:

1. The aggrieved party has condoned the offense or act complained of or has consented to the commission of the offense
or act complained of;
2. There is connivance in the commission of the offense-or act constituting the ground for legal separation;
3. Both parties have given ground for legal separation;
4. There is collusion between the parties to obtain the decree of legal separation; or
5. The action is barred by prescription.

If the court renders a decision granting the petition, it shall declare therein that the Decree of Legal Separation shall be
issued by the court only after full compliance with liquidation under the Family Code.

However, in the absence of any property of.the parties, the court shall forthwith issue a Decree of Legal Separation which
Decision
shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry where the Family Court
granting the legal separation is located.

The decision shall likewise declare that:

1. The spouses are entitled to live separately from each other but the marriage bond is not severed;
2. The obligation of mutual support between the spouses ceases; and
3. The offending spouse is disqualified from inheriting from the innocent spouse by intestate succession, and provisions
in favor of the offending spouse made in the will of the innocent spouse are revoked by operation of law.

The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally
or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the
decision shall also be published once in a newspaper of general circulation.
1. No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial
within fifteen days from notice of judgment.
2. An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days
Appeal
from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of
appeal on the adverse parties.

Liquidation, Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate
partition and court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and
distribution, distribution of the properties of the spouses, including custody, support of common children and delivery of their
custody, support
presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in
of common
children and previous judicial proceedings.
delivery of their
presumptive
legitimes. (21)

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 a. The court shall issue the Decree after:
1. Registration of the entry of judgment granting the petition for legal separation in the Civil Registry where the
marriage was celebrated and in the Civil Registry of the place where the Family Court is located;
Issuance of 2. Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of
decree Deeds where the real properties are located; and
3. The delivery of the children's presumptive legitimes in cash, property, or sound securities.
b. The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the
approved deed of partition.
d. The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered,
the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He
Registration shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree.
and e. In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a
publication of newspaper of general circulation.
decree f. The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage
and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the
properties or presumptive legitimes delivered to their common children.
c. In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed
Effect of death and terminated, without prejudice to the settlement of the estate in proper proceedings in the regular courts.
of party d. If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding upon the parties
and their successors in interest in the settlement of the estate in the regular courts.
a. Within 5 years from the date the decision granting the petition for legal separation has become final, the innocent
spouse may file a petition under oath the same proceeding for legal separation to revoke the donations in favor of the
offending spouse.
b. The revocation of the donations shall be recorded in the Register of Deeds of Deeds in the places where the properties
Petition for
are located.
revocation of
c. Alienations, liens, and encumbrances registered in good faith before the recording of the petition for revocation in the
donations
registries of property shall be respected.
d. After the issuance of the Decree of Legal Separation, the innocent spouse may revoke the designation of the offending
spouse as a beneficiary in any insurance policy even if such designation be stipulated as irrevocable. The revocation
or change shall take effect upon written notification thereof to the insurer.
a. If the spouses had reconciled, a joint manifestation under oath, duly signed by the spouses, may be filed in the same
proceeding for legal separation.
b. If the reconciliation occurred while the proceeding for legal separation is pending, the court shall immediately issue
an order terminating the proceeding.
c. If the reconciliation occurred after the rendition of the judgment granting the petition for legal separation but before
the issuance of the Decree, the spouses shall express in their manifestation whether or not they agree to revive the
former regime of their property relations or choose a new regime.

The court shall immediately issue a Decree of Reconciliation declaring that the legal separation proceeding is set aside
Decree of
and specifying the regime of property relations under which the spouses shall be covered.
reconciliation
(23)
d. If the spouses reconciled after the issuance of the Decree, the court, upon proper motion, shall issue a decree of
reconciliation declaring therein that the Decree is set aside but the separation of property and any forfeiture of the
share of the guilty spouse already effected subsists, unless the spouses have agreed to revive their former regime of
property relations or adopt a new regime.
e. In case of paragraphs (b), (c), and (d). if the reconciled spouses choose to adopt a regime of property relations different
from that which they had prior to the filing of the petition for legal separation, the spouses shall comply with Section
24 hereof.
f. The decree of reconciliation shall be recorded in the Civil Registries where the marriage and the Decree had been
registered.
a. In case of reconciliation under Section 23, paragraph (c) above, the parties shall file a verified motion for revival of
regime of property relations or the adoption of another regime of property relations in the same proceeding for legal
separation attaching to said motion their agreement for the approval of the court.
b. The agreement which shall be verified shall specify the following:
Revival of
1. The properties to be contributed to the restored or new regime;
property
2. Those to be retained as separate properties of each spouse; and
regime or
3. The names of all their known creditors, their addresses, and the amounts owing to each.
adoption of
c. The creditors shall be furnished with copies of the motion and the agreement.
another
d. The court shall require the spouses to cause the publication of their verified motion for two consecutive weeks in a
(24)
newspaper of general circulation.
e. After due hearing, and the court decides to grant the motion, it shall issue an order directing the parties to record the
order in the proper registries of property within 30 days from receipt of a copy of the order and submit proof of
compliance within the same period.

77
ANNEX J: GUARDIANSHIP
Petition for Appointment of
Guardian
Hearing
•On jurisdictional requirements
•On the main case
Appointment of guardian /
Issuance of letters of
guardianship
Termination of guardianship
•Ward is declared incompetent
or guardianship becomes
unnecessary
•Minor comes of age or dies.
78
Notice of Court-ordered time
and place of hearing
•If ward is a resident - reasonable notice
•If ward is a non-resident - notice is such
a manner the court deemds proper, by
publication or otherwise
•Notice is jurisidictional. Publication not
required.
Opposition, if any.
•Majority of minor, competency
of incompetent, unsuitability of
proposed guardian
Filing of bond (Rule 94 of ROC,
Sec. 14 of Rules on
Guardianship over Minors)
Service of final and executory
judgment on the Local Civil
Registrar (Sec. 8, Rule 93)
•In Rules of Guardianship over Minors,
The Register of Deeds where minor's
property is locaated shall annotate the
judgment in the title. (Sec. 13)
ANNEX K: SELLING AND ENCUMBERING PROPERTY OF THE WARD (RULE 95)

79
ANNEX L: DISTINCTION BETWEEN RULES ON GUARDIANSHIP OVER INCOMPETENT PERSONS AND OVER MINORS
Incompetent Minor
Person, property, or both of the incompetent Person, property, or both of the minor.
Applicability person. The minor’s parents are the joint legal guardians of such
minor without need of court appointment.
1. Relative 1. Relative
2. Friend 2. Other person on behalf of the minor
3. Other person on behalf of the incompetent 3. Minor himself if 14 years of age or over
who has no parent or lawful guardian 4. Secretary of the DSWD and DOH in case on an insane
Who may 4. Director of Health in favor of an insane minor who needs to be hospitalized
petition person who should be hospitalized or in 5. Anyone interested in the estate of the non-resident
favor of an isolated leper minor in case the minor is a nonresident with property
5. Anyone interested in the estate, but only in within the Philippines.
case the incompetent is a non-resident with
property within the Philippines.
 Over the person and property: RTC of the Family Court where the minor actually resides; if he resides
province where the ward resides; if ward in a foreign country, Family Court of the province or city
resides in a foreign country, RTC of the where his property (or part thereof) is situated.
Where to file
province where his property is situated.
 Over the property: RTC or MTC, depending
on the value of the property
1. Financial situation 1. Moral character
2. Physical condition 2. Physical, mental and psychological condition
Qualifications
3. Sound judgment 3. Financial status
of guardians
4. Prudence and trustworthiness 4. Relationship of trust with the minor
No provisions for
5. Morals, character, and conduct 5. Availability to exercise the powers and duties of a
qualifications 6. Present and past history of prospective guardian for the full period of the guardianship
under Rules 92- appointee, as well as the probability of his 6. Lack of conflict of interest with the minor
97; taken from being able to exercise the powers and 7. Ability to manage the property of the minor.
Francisco v. CA.
duties of guardian for the full period during
which guardianship will be necessary.
Default: Parent or court-appointed guardian, otherwise:
1. Surviving grandparent; in case of several surviving
grandparents, any one of them, taking into account all
relevant consideration
Who may be 2. Oldest brother or sister of the minor over 21 years of
appointed age, unless unfit or disqualified
3. Actual custodian of the minor over 21 years of age,
unless unfit or disqualified
4. Any other person, who in the sound discretion of the
court would serve the best interests of the minor.
1. Jurisdictional facts 1. Jurisdictional facts
2. Incompetency rendering the appointment 2. Name, age, and residence of the prospective ward
necessary or convenient 3. Ground rendering the appointment necessary or
3. Names, ages, and residences of the convenient
relatives of the incompetent, and of the 4. Death of the parents of the minor or the termination,
person having him in their care deprivation, or suspension of their parental authority
Contents of 4. Probable value and character of his estate 5. Remarriage of the minor’s surviving parent
petition 5. Name of the person for whom letters of 6. Names, ages, and residences of relatives within the 4 th
guardianship are prayed. civil degree of the minor, and of the persons having him
in their care and custody
7. Probable value, character, and location of the property
of the minor
8. Name, age, and residence of the person for whom
letters of guardianship are prayed.
1. Competency 1. Majority of the minor
Grounds to
2. Unsuitability 2. Unsuitability of the person for whom letters are prayed
oppose
for.
1. Ward has been determined to be 1. Ward comes of age
Termination competent by the guardianship court 2. Ward dies.
2. Guardianship is no longer necessary.
80
ANNEX M: DOMESTIC ADOPTION (A.M. No 02-6-02-SC in relation to R.A. No. 8552)
Filing of the petition for
adoption
Order of hearing
Publication of order of
hearing
Preparation and submission
of child and home study
reports by the social worker,
social service office, child-
placing or child-caring
agency, or the Department
Social worker's report on the
result of trial custody
Supervised trial custody
Hearing (within 6 months
from the issuance of the
order)
Social worker to verify with
the civil registry the real
identity and registered
name of the adoptee, and
establish that he is legally
available for adoption
81
Decree of adoption
Issuance of Certificate of
FInality upon expiration of
15-day period to appeal
Adopter to submit a certified
true copy of the decree of
adoption and certificate of
finality to the Civil Registrar
Civil Registrar
•Annotation of the decree on
adoptee's original birth
certificate
•Issuance of birth certificate
without notation that it is
new or amended
•Sealing of original birth
certificate
•Submission of proof of
compliance
ANNEX N: DOMESTIC V. INTER-COUNTRY ADOPTION
Domestic adoption
Governing body DSWD
Family Court where the prospective adoptive
parents reside
Where to file
1. Any Filipino citizen (regardless of residence)
a. Of legal age
b. Possesses full civil capacity and legal
rights
c. Of good moral character
d. Has not been convicted of any crime
involving moral turpitude
e. At least 16 years older than adoptee
(waivable if adopter is the biological parent
of adoptee or is the spouse of adoptee’s
parent)
f. Can support and care for his children in
keeping with family’s means
2. Any alien possessing the same
qualifications for Filipino nationals, plus:
a. His country has diplomatic relations with
Philippines
b. He has been living in the Philippines for at
least 3 continuous years prior to filing of
petition, and maintains such residence until
adoption decree is entered.
c. Has been certified by his diplomatic or
consular office or any appropriate
government agency to have the legal
capacity to adopt in his country.
Who may adopt
d. His government allows the adoptee to enter
his country as his adopted child.
Note: 3-year residency and certification
requirement may be waived:
a. A former Filipino citizen who seeks to adopt
a relative within the 4th degree of
consanguinity or affinity; or
b. One who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse;
c. One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative within the 4th degree of
consanguinity or affinity of the Filipino
spouse;
3. The guardian, with respect to the ward after
the termination of the guardianship and
clearance of his financial accountabilities
Note: Husband and wife must adopt jointly,
except:
a. One spouse seeks to adopt legitimate child
of the other spouse
b. One spouse seeks to adopt his own
illegitimate child (other spouse must
consent)
c. Spouses are legally separated.
82
Inter-country adoption
Inter-country Adoption Board
Family Court where the adoptee resides or may be
found, or
ICAB, through an intermediate agency, whether
governmental or an authorized and accredited
agency, in the country of the prospective adoptive
parents
Foreign nationals or Filipino citizens permanently
residing abroad:
1. At least 27 years of age and at least 16 years
older than the child to be adopted, at the time
of application, unless the adopter is the parent
by nature of the child to be adopted or the
spouse of such parent
2. If married, spouse must jointly file
3. Can act and assume all rights and
responsibilities of parental authority under his
national laws, and has undergone the
appropriate counseling from an accredited
counselor in his/her country
4. Has not been convicted of a crime involving
moral turpitude
5. Eligible to adopt under his/her national law;
6. Can provide the proper care and support and to
give the necessary moral values and example
to all his children, including the child to be
adopted;
7. Agrees to uphold the basic rights of the child as
embodied under Philippine laws, the U.N.
Convention on the Rights of the Child, and to
abide by the rules and regulations issued to
implement the provisions of this Act;
8. Comes from a country with whom the
Philippines has diplomatic relations and whose
government maintains a similarly authorized
and accredited agency and that adoption is
allowed under his/her national laws; and
9. Possesses all the qualifications and none of the
disqualifications.
 Who may be 1. Any person below 18 years of age who has Only a legally free child. (Note: definition of a legally
adopted: been voluntarily committed to the DSWD or free child has been repealed by R.A. No. 9253)
CHILD LEGALLY judicially declared available for adoption
AVAILABLE FOR (repealed by R.A. No. 9253)
ADOPTION (as 2. The legitimate child of one spouse, by the
defined under R.A. other spouse Child refers to a person below 18 years of age or a
No. 9253) 3. An illegitimate child, by a qualified adopter person over 18 years of age but is unable to fully
A child in whose favor to raise the status of the former to that of take care of him/herself or protect himself/herself
a certification was legitimacy from abuse, neglect, cruelty, exploitation, or
issued by the DSWD 4. A person of legal age regardless of civil discrimination because of physical or mental
that he/she is legally status, if, prior to the adoption, said person disability or condition. (as defined under R.A. No.
available for adoption has been consistently considered and 9253)
after the fact of treated by the adopters as their own child
abandonment or
since minority
neglect has been
proven through the 5. A child whose adoption has been previously
submission of rescinded
pertinent documents, 6. A child whose biological or adoptive parents
or one who was have died; provided that no proceedings
voluntarily committed shall be initiated within 6 months from the
by his/her parent(s) time of death of said parents
or legal guardian. 7. A child not otherwise disqualified by law or
these rules.
1. Prayer for change of name (title and caption
must state: registered name of the child,
aliases or other names by which the child is
What petition may known, and full name by which the child is
include known)
2. Rectification of simulated birth
3. Declaration that the child is a foundling,
abandoned, dependent, or neglected
1. At least 6 months, but court may reduce 1. At least 6 months
Supervised trial period or exempt parties from trial custody 2. Within the country of adopter
custody 2. Within the Philippines

At least once a week for 3 successive weeks in No publication required

Publication a newspaper of general circulation in the
requirement province or city where the court is situated

1. Birth, baptismal or foundling certificate, and 1. Birth certificate of petitioner

school records showing the name, age, and
residence of adoptee
2. Affidavit of consent
3. Child study report on the adoptee and his
biological parents
4. If petitioner is an alien, certification by his
diplomatic or consular office or any
appropriate government agency that he has
the legal capacity to adopt in his country and
Annexes that his government allows the adoptee to
enter his country as his own adopted child
unless exempted under Section 4(2)
5. Home study report on the adopters
6. Decree of annulment, nullity, or legal
separation of the adopter as well as that of
the biological parents, if any.
Court that issues Family Court
adoption decree
2. If applicable, marriage contract, divorce
decree, or judgment dissolving marriage
3. Sworn statement of consent of petitioner’s
biological or adopted children above 10 years
of age
4. Physical, medical and psychological evaluation
of the petitioner, certified by a duly licensed
physician and psychologist
5. Income tax returns or any authentic document
showing the current financial capability of
petitioner
6. Police clearance of petitioner issued within 6
months before filing of petition
7. Character reference from the local
church/minister, petitioner’s employer and a
member of the immediate community who
have known the petitioner for at least 5 years
8. Full body postcard-size pictures of petitioner
and his immediate family at least 6 months
before filing of petition
Foreign court

83
ANNEX O: INTER-COUNTRY ADOPTION

•Before the Inter-Country Adoption Board (ICAB)

•through the Central Authority or the Foreign Adoption Agency (CA/FAA)
File application to adopt •Note: One may file the petition before the RTC, which would then refer it to the ICAB

•Of the prospective child with the applicant

Family Selection and •Matching proposal is given to the CA/FAA
Matching

Acceptance of the
Matching Proposal

Assessment of the Pre-

adoptive placement fees

•Withing 3 working days from receipt of acceptance of matching proposal and corresponding
ICAB issuance of fees
Placement Authority •ICAB shall furnish the DFA and the Agency copies of the Placement Authority

•Applicant personally fetches the adoptive child from the Philippines not later than 20
working days after notice of issuance of the visa of the child for travel to where applicant
Trial custody resides.
•Applicant shall stay in the country with the child for at least 5 days for bonding." (from the
book of De Leon and Wilwayco. Please note period in Annex N. Thanks. -Mia)

•Within 15 days from receipt of last post-placement report

ICAB transmits Affidavit of
Consent to Adoption to
CA/FAA

•By the adoptive applicants

•In the court or tribunal in accordance with their national law
File petition for adoption

•Must be transmitted by the CA/FAA to ICAB

Decree of Adoption

Recording of the judgment

in the appropriate Civil
Registry in the Philippines

84
ANNEX P: WRIT OF HABEAS CORPUS

•File with any court except MTC, MCTC, metc

•Signed and verified by the party or some person on his behalf
•State the matters requried under section 3
Petition

•The writ shall issue if it appears from the petition that it ought to issue (sec. 5)
•Note that the writ doesn't order the release of the prisoner, it only is an order to produce the
Issue or deny body and show the cause of restraint.
issuance of writ

•To be served by sheriff or other proper officer or person deputed by the court or judge
•To be served upon the person causing such restraint and shall command him to have the body of
the person restrained before the court or judge. (Sec. 6)
Service of writ
•Person to be produced should be designated by name if known, if not, he may be described or
identified.

• State the matters required in sec. 10.

• Signed and worn to by the person who makes it (the person or officer causing the
Return restraint)

•Judge must immediately proceed to hear and examine the return. If the hearing is adjourned, judge shall make
such order for the safekeeping of the person restrained. If the person is not produced because of sickness or
infirmity, the judge must be satisfied that it is so grave that the person cannot be produced without danger.
•If the person is restrained under warrant of commitment, the return is prima facie evidence of cause of
Hearing restraint. If the person is restrained by private authority, return is considered plea of facts which must be
proven.

•If the judge is satisfied that the person is unlawfully restrained, he shall order his discharge upon
service of a copy of the order on the officer causing the restraint and the officer or person does not
wish to appeal
Judgment •Follow section 14 on when to and when not to release

85
ANNEX Q: WRIT OF AMPARO

•Filed by aggrieved party, immediate family, ascendant/descendant, collateral relatives within 4th
degree or any concerned citizen, organization etc. (in that order). Filing by the first one (aggrieved)
will bar filing by the latter ones.
Petition •File with RTC (where act was committed), SC, CA, SB.

•Issue the writ if on the face of the petition it ought to issue

•Issued by clerk of court under seal of the court or if urgent, the judge may isue the writ under his
Issue or deny own hand.
issuance of •Writ shall set date and time of hearing which shall not be later than 7 days from issuance.
writ

•By a judicial officer or person deputized by court, justice or judge who shall retain a copy for the
return of service.
Service of •Note that return of service (proof of service) is different from return on the writ (similar to answer
writ of respondent).

•Within 5 working days from service, not extendable even on highly meritorious grounds.
•Failure will result in hearing ex parte and contempt
Return

•Summary. A preliminary conference may be called to simplify the issues and determine possibility
of stipulations and admissions.
Hearing •Day to day until completed and same priority as WHC

•10 days from time petition is submitted for decision

•Grant of the privilege of the writ (distinguish from the writ itself)
Judgment

86
ANNEX R: WRIT OF HABEAS DATA

•Filed by immediate family member or ascendant/descendant/collateral

relative within 4th degree if no immediate family
•File with RTC (where data is gathered/collected/stored at petitioner's
Petition
option), CA, SB, SC

•Issue writ if on its face it ought to issue

•Issue by clerk of court under seal of court or by judge or justice if urgent
Issue or Deny •Set the date and time for summary hearing not later than 10 work days
issuance of
writ from issuance

•Served by judicial officer or person deputized by court, justice or judge

within 3 days from issuance if issued by clerk
Service

•Within 5 working days, extendable for justifiable reasons.

•Take note of where to file return
Return

•Summary hearing with optional preliminary conference to simplify issues

and determine possible stipulations and admissions.
Hearing

•10 days from time petition is submitted for decision.

•If proven by substantial evidence, court shall enjoin the act, order the
deletion/destruction/rectification of erroneous data, otherwise, privilege of
Judgment
writ denied.

•This applies to the judgment. It is a return made by the officer serving the
judgment to state how the judgment was enforced. This will be set for
Return of hearing with due notice to the parties.
Service

87
ANNEX S: COMPARATAIVE TABLE OF WRITS
HABEAS CORPUS
Illegal confinement and detention
Deprivation of rightful custody
Nature, scope,
function
Suspended in case of invasion or
Limitations rebellion when public safety requires
The party for whose relief it is
intended or some person on his
behalf
Who may file
SC, CA, RTC, MTC (in absence of
RTCs according to sec. 35 BP 129)
Where to file
If SC or CA, anywhere
Where
If RTC, within judicial region
enforceable
IF SC or CA issues writ, before such
court or any member or RTC
If RTC issues writ, return before RTC
Where
returnable
Court shall make order as to costs
Docket fees
upon final disposition (sec. 19)
Signed and verified
1. Person is imprisoned or restrained
of liberty
2. Name or assumed appellation of
person restraining
Contents of 3. Place where restrained
petition 4. Cause of detention
1. Court or judge must issue when petition appears on its face that it ought to issue
Clerk of court shall issue or in case of emergency, judge may issue.
When proper 2. Also proper when judge has examined cause of restraint of prisoner and is satisfied that he is unlawfully
imprisoned
AMPARO
Violation or threat to life, liberty and
security by unlawful act or omission
of public official or employee or
private individual or entity
Covers extralegal killings and
enforced disappearances
Shall not diminish, increase or
modify substantive rights
1. Aggrieved party
2. Immediate family
3. Ascendant/descendant/collateral
relative within 4th degree affinity or
consanguinity
4. Any concerned citizen,
organization, assoc, or institution
Filing by aggrieved bars filing by
2,3,4
SC, CA, SB, RTC (where threat, act,
omission committed or any element
occurred)
Anywhere
If SC issues writ, returnable before
SC, CA, SB, RTC where threat, act,
omission was committed or
elements occurred.
If SB or CA issues writ, returnable
before SB, CA, RTC where threat, act,
omission was committed or
elements occurred.
If RTC issues writ, returnable before
RTC
No docket fees
Signed and verified
1. Personal circumstances of
petitioner
2. Name or appellation and
circumstances of respondent
3. Right violated or threatened
4. Investigation conducted plus
circumstances of each
5. Actions and recourses taken by
petitioner
6. Relief prayed for may include
general prayer for other reliefs
88
HABEAS DATA
Violation or threat to right to privacy
in life, liberty or security by unlawful
act or omission of public official or
employee or private individual or
entity engaged in gathering,
collecting, storing data or info
regarding person, family, home and
correspondence of aggrieved party.
Shall not diminish, increase or
modify substantive rights
1. Aggrieved party
2. In case of extralegal killings and
enforced disappearances, by
immediate family
3. In default of 2, any
ascendant/descendant/collateral
relative 4th degree of consanguinity
or affinity.
RTC where petitioner/respondent
resides or where data is gathered,
collected, stored (option of
petitioner)
SC, CA, SB if it involves public data
files of gov’t offices
Anywhere
Same as amparo except RTC where
petitioner/respondent resides or
where data is gathered, collected,
stored, option of petitioner.
None for indigent petitioner
Verified and written
1. Same in amparo
2. Manner of violation or threat of
right to privacy
3. Actions and recourses taken by
pet to secure data
4. Location of files, registers,
database, the government office and
person in charge
5. Reliefs
 By sheriff, other proper officer, or
person deputed by court.
Service by leaving original with
person to whom it is directed and
Service preserving a copy on which to make
return of service
If person not found or does not have
custody, service on any other person
exercising custody
May or may not be officer
Respondent
Person served shall convey the
person imprisoned before the judge
How executed on the day specified in the writ
and returned unless latter is sick or infirm and
cannot be brought without danger
Officer then makes return on the writ
When to file Day specified on the writ
return
1. Truth of custody/power over
aggrieved
2. Cause of custody plus copy of writ,
order, process upon which party is
held
3. If held in custody but not
produced, state the nature and
Contents of
gravity of sickness or infirmity
return
4. If he had custody and had
transferred custody, state to whom,
what time, cause of transfer, under
what authority
Signed and sworn by person who
Formalities of makes it if prisoner not produced,
return unless made and signed by a sworn
public officer in official capacity
1. Clerk refuses to issue writ after
allowance and demand
2. Person neglects/refuses to obey
or make return or makes false
return, refuses to deliver to the
prisoner or person on behalf of
Penalties
prisoner a true copy of warrant or
order of commitment within 6 hours
Shall forfeit to party aggrieved 1,000
recoverable in proper action and
may be punished for contempt
Period to return
extendable?
General denial
allowed?
Fail to file
return
Nature of
hearing
By judicial officer or person deputized
Server shall retain a copy for return on service
If person not served personally, substituted. Service
Public official or employee or private Public official or employee or private
individual or entity individual or entity engaged in
gathering, collecting storing data
Respondent files return Same as amparo
72 hours from service of writ Same as amparo
1. Lawful defenses 1. Lawful defenses
2. Steps taken to determine fate or 2. If in charge, in possession, or in
whereabouts of aggrieved control of data subject of petition,
3. All relevant info in possession of disclosure of data, nature of data
respondent pertaining to the act, and purpose for collection, steps
omission, threat taken to ensure confidentiality of
4. If respondent is a public official, data, currency and accuracy of data
state acts to verify identity of
aggrieved, recover and preserve
evidence, identify and collect
witness statements, determine
cause, manner, location, time of
death or disappearance, identify and
apprehend persons involved, bring
suspected offenders before court.
Verified written return with Same as amparo
supporting affidavits
1. Clerk refuses to issue Same as amparo
2. Person deputized refuses to serve
3. Respondent refuses to make
return, makes false return or any
person disobeys or resist a lawful
process or order of the court
Punished for contempt without
prejudice to disciplinary action for 1
and 2
Not at all For justifiable reasons
No No
Ex parte hearing Ex parte hearing, granting petitioner
reliefs as warranted unless court
requires petitioner to present
evidence
Summary with optional preliminary Same as amparo
conference Hearing in chambers if defense of
national security, state secrets,
privileged info
89
 Date and time As specified in writ As specified in writ not later than 7 As specified in the writ not later than
of hearing days from issuance of writ 10 working days from issuance
MTD except lack of jurisdiction in MTD, motion for extension to file Same as amparo
custody of minors opposition, affidavit, position paper
and other pleadings, dilatory motion
for postponement, Bill of particulars,
Prohibited
counterclaims or cross claims, third
pleadings
party complaints, reply, motion to
declare in default, intervention,
memorandum, MR of interlocutory
orders, interim relief orders, R65
Clear and convincing evidence Substantial evidence Substantial evidence
(Dizon v Eduardo 1988) If respondent is private individual,
Burden of proof
ordinary diligence, if public official or
employee, extraordinary diligence.
Yes. Consonant with return as prima no
Presumption of facie evidence if prisoner is in
official duty custody under warrant of
commitment
10 days from time petition Same as amparo
Judgment
submitted for decision
Within 48 hours from notice of 5 working days from notice of Same as amparo
Appeal
judgment or order appealed judgment under r45
Consolidated with criminal action Same as amparo
Consolidation
filed subsequently
No more separation petition shall be Same as amparo
Effect of filing
filed. Reliefs available by motion in
criminal action
criminal case

ANNEX T: CHANGE OF NAME (RULE 103)

•Signed and verified. Must state:

•at least 3 years residency in province where petition is filed
•cause for change
Petition •name asked for

•If sufficient in form and substance, court shall fix date (not within 30 days prior to election nor 4 months after
last publication of notice) and place of hearing, order publication once a week for 3 weeks in newspaper of
Order for gen circ published in the province.
hearing

•Any interested person may appear and oppose.

•Solgen or provincial or city fiscal shall appear on behalf of Gov't (which implies that notice must be sent to
Hearing them)

•Upon proof that order has been published and allegations are true, and proper and reasonable cause
appears for changing the name, the court shall adjudge that name be changed.
•Civil registrar of the municipality or city where the court issuing the judgment is situated must be furnished
Judgment with the judgment. He will then enter the same in the civil register.

90
ANNEX U: CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY (RULE 108)
•Filed by any person interested in any act, event, order, or decree concerning civil status recorded in civil register
•Filed with RTC where registry is located
Petition •Include civil register and all persons who have or claim any interest which would be affected as parties

•Upon filing, court shall fix tiem and place for hearing
•Send notice to persons in petition
Notice and •Publication in newspaper of gen circ in province once a week for 3 weeks
publication

•Parties may file opposition within 15 days from notice or last date of publication of notice
Opposition

•Court may make orders to expedite proceedings and grant preliminray injunction to preserve rights of parties
Proceedings

•Court may dismiss or issue order granting petition.

•In either case, certified copy of judgment shall be served upon civil registrar ocncerned who shall annotate it in his record
Judgment

ANNEX V: CORRECTION OF ENTRIES IN THE CIVIL REGISTRY (RA 9048 as amended)

•Filed together with supporting papers in 3 copies given to concerned civil registrar or consul general, civil registrar general, and
petitioner
Petition

•Registrar or consul general shall post the petition in conspicuous place for 10 days and published in newspaper of gen circ once
Notice and a week for 2 weeks
publication

•Render not later than 5 working days after completion of posting and/or publication requirement.
•Transmit a copy of decision with records to Civil Registrar General within 5 working days from decision
Decision of •If petition is denied, petitioner may appeal with civil registrar general or file appropriate petition with proper court
Civil Registrar

•Within 10 working days from receipt of decision

•Grounds: not clerical or typographical, correction is substantial or controversial, basis does not fall under one of the valid
Objection by grounds
Civil Registrar •Failure to exercise power to impugn shall render the decision final and executory
General

•Civil registrar general shall immediately notify city or municipal registrar of action taken on decision
Notification to •Upon reciept of notice, city or municipal registrar shall notify petitioner
civil registrar •Petitioner may then seek reconsideration with civil registrar general or file petition with proper court.
and petitioner

91
ANNEX W: COMPARATIVE TABLE OF RULES ON CHANGE OF ENTRIES
RULE 103
Substantial changes in name
Applicability
Nature Judicial
Person desiring the change or
some person on his behalf
Who may file
RTC of province where petitioner
resides
Where
Not a party to the proceedings
Local civil registry
Notice No mention of notice (except
requirement impliedly to the solgen or fiscal)
In Re: Petition for Change of
Name of X, also known as Y and
Z, to ABC. X petitioner
*Include all aliases in title to
Contents of
allow reader of publication to
Petition
notice said aliases
(a) residency requirement
(b) cause for change
(c)name asked for
Signed and verified
Form of petition
Any interested person
Opposition
1. Name is ridiculous, tainted
with dishonor or extremely
difficult to write or pronounce.
2. Change results as a legal
consequence of legitimation
3. The change will avoid
confusion.
Grounds 4. A sincere desire to adopt a
Filipino name to erase signs of
former alienage
5. Having continuously used and
been known since childhood by
a Filipino name, having been
unaware of alien parentage
’ (
RULE 108
Substantial changes in entries in
civil registry (other than name)
Judicial
Natural person with direct and
personal interest in the
correction
RTC where civil registry is
located
Made a party to the proceedings
Notice to persons named in
petition
Verified
Civil registrar and all persons
who have or claim any interest
Birth, marriage, death, legal
separation, judgment of
annulment or nullity of marriage,
legitimation, adoption,
acknowledgment of natural
child, naturalization, loss,
election, recovery of nationality,
civil interdiction, judicial
determination of filiation,
voluntary emancipation, change
of name
92
RA 9048
(1) Change in first names or
nicknames
(2) Change in clerical or
typographical errors
Administrative
Natural person with direct and
personal interest in the change
Local civil registry office of city or
municipality where record is
kept
(a) if pet migrated to another
place within PH, file with
registrar where party is presently
residing or domiciled
(b) if pet resides or domiciled in
another country, nearest
Philippine Consulate
Is where the petition is filed
Affidavit verified, subscribed and
sworn to before any person
authorized to administer oaths
Civil registrar general may object
but to the decision of local
registrar, not to the petition itself
(1) first name or nickname is
ridiculous, tainted with dishonor,
extremely difficult to writ or
pronounce
(2) new first name or nickname
habitually and continuously used
by petitioner and has been
publicly known by the first name
or nickname in the community
(3) change will avoid confusion
)