Professional Documents
Culture Documents
SPECIAL PROCEEDINGS
13. Declaration of absence and death [Rule 7. Rescission of Where the Family Court
107]; and Adoption adoptee
14. Cancellation or correction of entries in the resides
civil registry [Rule 108]. 8. Habeas Corpus Where the SC, CA, RTC,
detainee is MTC in the
detained (if province
filed with where there is
SPECIAL VENUE JURISDICTIO Habeas Corpus in RTC) no judge;
PROCEEDING N relation to minor Sandiganbaya
n only in aid of
1. Settlement of Decedent’s MTC: gross Where the its appellate
estate residence; if value of petitioner jurisdiction
a Non- estate does resides or
resident, not exceed where the Family Court,
place where P300K or minor may CA and SC
he had an P400K in be found
estate Metro Manila 9. Change of name Where RTC
RTC: if above petitioner
amounts resides
exceeded
10. Appointment of Where the RTC
2. Escheat a. Person RTC representative of absentee
dies absentee/declaratio resided
intestate n of absence before his
leaving no disappearanc
heir- e
Decedent’s RTC
11. Where the RTC
residence; if
Cancellation/Correct correspondin
a Non-
ion of entries in civil g Civil
resident, RTC
registries Registry is
place where
located
he had an
estate
1.2.1 It is subject to no other form, may be contest the allowance thereof. [Rule 76, Section
made in or out of the Philippines, and needs no 3]
witnesses.
1.2.2 At least one witness should testify that 3.3 Publication of notice
the will and the signature thereon are in the The court shall cause notice of such time and
handwriting of the testator [Rule 76, Section 5, place to be published three (3) weeks
second paragraph]. If the holographic will is successively, previous to the time appointed, in
contested, at least three (3) witnesses who a newspaper of general circulation in the
know the handwriting of the testator must province. [Rule 76, Section 3]
testify but in the absence of any competent Note: Where the petition for probate has been
witness, if the court deems it necessary, expert filed by the testator himself, no newspaper
testimony may be resorted to. [Rule 76, Section publication shall be made.
11, second paragraph]
3.4 Persons entitled to notice [Rule 76,
2. Time to submit to the court Section 4]
2.1 Reglementary periods 3.4.1 Heirs, devisees, legatees, and executors
2.1.1 Within twenty (20) days from knowledge should be notified by mail or personally.
of the death of the testator, the custodian of a 3.4.2 The mail should be deposited in the post
will shall deliver it to the court having office with the postage thereon prepaid at least
jurisdiction or to the executor named in the will. twenty (20) days before the hearing, if the
[Rule 75, Section 2] places of residence be known.
2.1.2 On the other hand, the executor has 3.4.3 Personal service of copies of the notice at
twenty (20) days from knowledge of the death least ten (10) days before the day of hearing
of the testator or knowledge of the fact that he shall be equivalent to mailing.
is named executor to submit the will to the Note: If the testator asks for the allowance of
court unless the will has reached the court his own will, notice shall be sent only to his
already. Within the same period, he shall signify compulsory heirs.
to the court in writing whether he accepts or
refuses the trust. [Rule 75, Section 3] 3.5 Proof at hearing [Rule 76, Section 5]
At the hearing, compliance with the provisions
on notice and its publication must be shown
2.2 Penalties before the introduction of testimony in support
2.2.1 A person who neglects to comply with of the will. All testimony shall be taken under
Rule 75, Sections 2 and 3, without excuse oath and reduced to writing.
satisfactory to the court, shall be fined not
exceeding P2,000. [Rule 75, Section 4] 3.6 Lost or destroyed will [Rule 76,
2.2.2 The custodian who refuses to comply with Section 6]
the order of the court to deliver the will, when No will shall be proved as a lost or destroyed
he is ordered to do so, may be committed to will unless:
prison until he delivers the will. [Rule 75, 3.6.1 The execution and validity of the same be
Section 5] established; and
3.6.2 The will is proved to have been in
3. Procedure in the Probate of a Will existence at the time of the death of the
3.1 The contents of a petition for the allowance testator, or is shown to have been fraudulently
of a will are [Rule 76, Section 2]: or accidentally destroyed during the lifetime of
a) The jurisdictional facts; the testator without his knowledge; nor
b) The names, ages, and residences of the 3.6.3 Unless its provisions are clearly and
heirs, legatees, and devisees of the testator or distinctly proved by at least two (2) credible
decedent; witnesses.
c) The probable value and character of the
property of the estate; 3.7 Deposition [Rule 76, Section 7]
d) The name of the person for whom letters are If none of the subscribing witnesses resides in
prayed; the province, the court may, on motion, direct a
e) If the will has not been delivered to the court, deposition to be taken, and may authorize a
the name of the person having custody of it. photographic copy of the will to be made and to
Note: No defect in the petition shall render void be presented to the witness on his examination.
the allowance of the will, or the issuance of
letters testamentary or of administration with 3.8 Unavailable witnesses [Rule 76,
the will annexed. Section 8]
If the subscribing witnesses are dead or insane,
3.2 Time for proving the will or none of them resides in the Philippines, the
The court shall fix a time and place for proving court may admit the testimony of other
the will when all concerned may appear to witnesses to prove the sanity of the testator;
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SPECIAL PROCEEDINGS
the due execution of the will; and as evidence 4.4 The court shall grant letters testamentary or
of the execution of the will, it may admit proof letters of administration which shall extend to
of the handwriting of the testator and of the all the estate of the testator in the Philipppines.
subscribing witnesses, or of any of them. 4.5 After the payment of just debts and
expenses of administration, the estate shall be
3.9 Contesting a will [Rule 76, Section 10] disposed of according to such will. The residue,
Anyone appearing to contest the will must state if any, shall be disposed of a s is provided by
in writing his grounds for opposing its law in cases of estates in the Philippines
allowance, and serve a copy thereof on the belonging to persons who are inhabitants of
petitioner and other parties interested in the another state or country.
estate.
C. Executors and Administrators
3.10 Certificate of Allowance [Rule 76,
Section 13] 1. Requirements for the Issuance of
If the court is satisfied that the will was duly Letters Testamentary and of Letters of
executed and that the testator at the time of its Administration [Rules 78 and 79]
execution was of sound and disposing mind and Probate proceedings may be opened by a
not acting under duress, menace and undue petition for the allowance of a will and the
influence, or fraud, a certificate of its allowance issuance of letters testamentary, or letters of
signed by the judge and attested by the seal of administration.
court a) shall be attached to the will [and the
will and certificate filed and recorded by the 1.1 The petition may be opposed and a petition
clerk of court]; and b) shall be recorded in the may at the same time be filed for letters of
register of deeds of the province in which the administration with the will annexed. [Rule 79,
lands lie. Section 1]
3.11 Grounds for disallowing a will [Rule 1.2 The contents of a petition for letters of
76, Section 9] administration are [Rule 79, Section 2]:
The will shall be disallowed in any of the a) The jurisdictional facts;
following cases: b) The names, ages, and residences of the
3.11.1 If not executed and attested as required heirs, and the names and residences of the
by law; creditors, of the decedent;
3.11.2 If the testator was insane, or otherwise c) The probable value and character of the
mentally incapable to make a will, at the time property of the estate; and
of its execution; d) The name of the person for whom letters of
3.11.3 If it was executed under duress, or the administration are prayed;
influence of fear, or threats; Note: No defect in the petition shall render void
3.11.4 If it was procured by undue and the issuance of letters of administration.
improper pressure and influence, on the part of
the beneficiary, or of some other person for his 2. Appointment of Executors and
benefit; Administrator
3.11.5 If the signature of the testator was 2.1 No person is competent to serve as
procured by fraud or trick, and he did not intend executor or administrator who is a) a minor; b)
that the instrument should be his will at the not a resident of the Philippines; and c) in the
time of fixing his signature thereto. opinion of the court, unfit to execute the duties
of the trust by reason of drunkenness,
4. Allowance of Will Proved Outside of improvidence, or want of understanding or
Philippines [Rule 77] integrity, or by reason of conviction of an
4.1 A petition for allowance in the Philippines offense involving moral turpitude. [Rule 78,
must be filed by the executor or other Section 1]
interested person. A duly authenticated copy of
the will and of the order of the allowance must 2.2 The executor of an executor shall not, as
be attached. such, administer the estate of the first testator.
4.2 The court shall then: a) fix a time and place [Rule 75, Section 2] A married woman may
for the hearing; and b) cause notices to be serve as executrix or administratrix. The
given as in case of an original will presented for marriage of a single woman shall not affect her
allowance. authority so to serve under a previous
4.3 If the will is allowed, a certificate of appointment. [Rule 75, Section 3]
allowance shall be filed and recorded by the 2.3 After a will is proved and allowed, the court
clerk. The will shall have the same effect as if shall issue letters testamentary thereon to the
originally proved and allowed in such court. person named as executor therein, if he is
competent, accepts the trust, and gives bond
as required by the rules. It is clear that an
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SPECIAL PROCEEDINGS
executor is one who is named in a will. [Rule 78, or of administration by any cause including an
Section 4] appeal from the allowance or disallowance of a
will. The special administrator shall take
2.4 There may be several executors named in possession and charge of the estate of the
the will. Letters testamentary may issue to such deceased until questions causing the delay are
of them as are competent, accept and give decided and executors or administrators
bond. If no executor named qualifies, then an appointed. [Rule 80, Section 1]
administrator is appointed. [Rule 78, Section 5]
4.1 While the qualifications of a special
2.5 Procedure in the Appointment of an administrator are not spelled out in the Rules,
Administrator [Rule 79, Sections 3-6] the appointment should be within the sound
2.5.1 When a petition for letters of discretion of the court and such discretion
administration is filed, the court shall fix a time should not be a whimsical one. There is no
and place for hearing and shall cause notice to reason why the same fundamental and legal
be given to the known heirs and creditors and principles governing the choice of a regular
to other persons who have interest in the estate administrator should not be taken into account
[mode of giving notice: Rule 76, Sections 3 and in the appointment of a special administrator.
4] [Ozaeta vs. Pecson, 93 Phil 416, 1953]
However, the court is not bound to follow the
2.5.2 Any interested person may contest the order of preference set up for the appointment
petition by filing a written opposition. The of a general administrator. [Ocejo vs. Consul
petition may be contested: a) on the ground of General of Spain, 67 Phil 475, 1939]
incompetency of the person for whom letters
are prayed; or b) on the ground of the 4.2 Only one special administrator at a time
contestant’s own right to the administration. may be appointed, since the appointment is
merely temporary. [Ozaeta vs. Pecson, 93 Phil
2.5.3 At the hearing, it must be shown that 416, 1953; Fernandez vs. Maravilla, No. L-
notice has been given. The proof as presented 18799, March 31, 1964]
by the parties shall be heard by the court and if
satisfied that the decedent left no will, or that 4.3 Bond
there is no competent and willing executor, it This will be in such sum as the court directs and
shall order the issuance of letters of conditioned:
administration to the party best entitled a) that s/he will make and return a true
thereto. inventory of the goods, chattels, rights, credits,
and estate of the deceased; and
3. Priorities in the Appointment of b) that he will truly account for such as are
Administrators [Rule 78, Section 6] received by him when required by the court and
Administration may be granted: will deliver the same to the person appointed
3.1 To the surviving spouse, or next of kin, or executor or administrator, or to such other
both, or to such person as such surviving person as may be authorized to receive them.
spouse or next of kin, requests to be appointed,
if competent and willing to serve. 4.4 Powers and duties
3.2 To one or more of the principal creditors, if The special administrator shall take possession
competent and willing to serve, in default of the and preserve the goods, chattels, rights,
foregoing or if the surviving spouse or next of credits, and estate of the deceased and for that
kin neglects for thirty (30) days after the death purpose may commence and maintain suits as
of the deceased to file a petition for administrator. He may sell only such perishable
administration or the request that and other property as the court orders sold. He
administration be granted to some other is not liable to pay any debts of the deceased
person. unless so ordered by the court. [Rule 80, Sec. 2]
3.3 To such other person as the court may
select, in default of the foregoing. 4.4.1 The court has no power to order a special
administrator to sell real property of the estate
Note: The court may disregard the preference pending resolution of the issue of the
above enumerated in its sound discretion and appointment of the regular administrator.
its decision will not be interfered with on appeal [Silverio, Sr. vs. Court of Appeals, G.R. No.
unless it appears that it is in error. [Silverio, Sr. 109979, March 11, 1999]
vs. Court of Appeals, G.R. No. 109979, March 4.4.2 A special administrator does not have the
11, 1999] power to close the estate because he normally
does not pay the debts of the deceased.
4. Appointment of Special Administrators However, he can be sued. Otherwise,
A special administrator may be appointed when prescription may set in if the appointment of
there is delay in granting letters testamentary
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SPECIAL PROCEEDINGS
the regular administrator is delayed. [Anderson invoices of the property belonging to such
vs. Perkins, No. L-15388, January 31, 1961] partnership; [Section 1]
6.2 To maintain in tenantable repair the houses
4.5 Termination and other structures and fences belonging to
The special administrator may be removed on the estate; and to deliver the same in such
grounds other than those mentioned in Rule 82. repair to the heirs or devisees when so directed
[De Gala vs. Gonzales, 53 Phil 104, 1929; Roxas by the court; [Section 2]
vs. Pecson, 82 Phil 407, 1948] When an 6.3 To possess and manage the estate of the
executor or administrator is appointed, the deceased for the payment of the debts and
powers of the special administrator cease. He expenses of administration; [Section 3]
shall immediately deliver the estate to the
executor or administrator who may prosecute 7. Inventory and Appraisal [Rule 83]
to final judgment suits commenced by the Within three (3) months after his appointment,
special administrator. [Rule 80, Section 3] an executor or administrator shall file a true
inventory and appraisal of all the real and
5. Bond of Administrator or Executor personal estate of the deceased, with the
[Rule 81] assistance of one or more inheritance tax
5.1 Before an executor or administrator enters appraisers, as may be ordered by the court.
upon the execution of his trust, he shall give a
bond, in such sum as the court directs, 7.1 Exclusions from the inventory
conditioned as follows [Section 1: The articles that should not be inventoried are:
a) the wearing apparel of the surviving spouse
5.1.1 To make and return within three (3) and minor children; b) the marriage bed and
months, a true and complete inventory of all bedding; and c) such provisions and other
goods, chattels, rights, credits, and estate of articles as will necessarily be consumed in the
the deceased which shall come to his subsistence of the family of the deceased. They
possession or knowledge or to the possession of shall not be considered as assets, nor
any other person for him; administered as such. [Section 2]
5.1.2 To administer according to these rules,
and if an executor, according to the will of the 7.2 Allowance to widow and family
testator, all goods, chattels, rights, credits, and The widow and minor or incapacitated children
estate of the deceased which shall come to his of the deceased, during the settlement of the
possession or to the possession of any other estate, shall receive such allowance as are
person for him, and from the proceeds, to pay provided by law. [Section 3]
and discharge all debts, legacies, and charges
on the same, or such dividends thereon as shall 7.3 Questions of title
be decreed by the court; A probate court can resolve questions of title
5.1.3 To render a true and just account within only provisionally. All that the court can do is to
one (1) year, and at any other time when determine whether the properties should or
required by the court; and should not be included in the inventory or list of
5.1.4 To perform all orders of the court. properties to be administered by the
administrator. If there is a dispute, then the
5.2 The executor may serve without bond if the parties, the administrator and the opposing
testator so directs, or with only his individual parties have to resort to an ordinary action for a
bond, conditioned only to pay the debts of the final determination of the conflicting claims of
testator; but the court may require a further title. [Sanchez vs. Court of Appeals, G.R. No.
bond in case of a change in his circumstances, 108947, October 23, 1997]
or for other sufficient cause, with the conditions
named in the last preceding section. [Section 2] 8. Sales and Mortgages
The need for approval by the probate court
5.3 When two (2) or more persons are exists only where specific properties of the
appointed as executors or administrators, the estate are sold and not when only ideal and
court may take a separate bond from each or a indivisible shares of an heir are disposed of.
joint bond from all [Section 3]. [Heirs of Pedro Escanlar vs. Court of Appeals,
G.R. No. 119777, October 23, 1997] The sale or
6. General Powers and Duties of Executors mortgage of specific estate property may be
and Administrators [Rule 84] approved by the court under the following
An executor and administrator has the following circumstances:
powers and duties:
6.1 To have access to, examine, and take 8.1 For the payment of debts
copies of books and papers relating to the The sale, mortgage or encumbrance of real
partnership business; and to examine and make property to pay the obligations of the estate, if
beneficial, may be approved: a) when the
Page 9
SPECIAL PROCEEDINGS
personal estate of the deceased is not sufficient be public or private, as would be most
to pay the debts; or b) where its sale may injure beneficial to all parties concerned.
the business or other interests of those 8.4.5 If the estate is to be sold at auction, the
interested in the estate; and c) where the mode of giving notice of the time and place of
testator has not otherwise made sufficient the sale shall be governed by the provisions
provision for the payment of such debts. [Rule concerning notice of execution sale. [Rule 39]
89, Section 2] 8.4.6 The transaction and the court order shall
be recorded in the registry of deeds of the
Note: If a part of the real property cannot be province in which the real estate is situated.
sold, mortgaged or otherwise encumbered
without injury to those interested in the 9. Actions by and against Executors and
remainder, the disposition may be of the whole Administrators
of the property, or so much as is necessary or In general, executors and administrators may
beneficial under the circumstances. bring or defend actions that survive. Claims that
do not survive are money claims that have to
8.2 If beneficial be filed in the estate proceedings.
The court may authorize the sale of the whole
or a part of the estate, although not necessary 9.1 Actions that survive are those actions:
to pay the obligations of the estate so long as it a) to recover real or personal property, or an
will be beneficial to the heirs, devisees, interest therein from the estate; or b) to enforce
legatees and other interested persons. Such a lien thereon; and c) actions to recover
authority shall not be granted if inconsistent damages for an injury to person or property,
with the provisions of a will. The proceeds shall real or personal. [Rule 87, Section 1]
be given to the persons entitled to the estate in
the proper proportions. [Rule 89, Section 4] 9.2 Actions that do not survive are the
8.3 Bond to prevent sale, etc. money claims or: a) all claims for money
Persons interested may prevent a sale, arising from contract, express or implied, due,
mortgage or encumbrance by giving a bond in a not due or contingent [These claims are
sum to be fixed by the court, conditioned to pay specifically described as contractual money
the obligations of the estate within such time as claims in the Rules of Court, Rule 20, Sec. 3]; b)
the court directs. Such bond shall be for the all claims for funeral expenses; c) expenses for
security of the creditors, as well as of the the last sickness of the decedent; and d)
executor or administrator, and may be judgment for money against the decedent,
prosecuted for the benefit of either. [Rule 89, which should be presented in the form of claims
Section 3] against the estate. [Rule 86, Section 5]
8.4 Regulations for granting authority to 9.3 Mortgage due estate may be
sell, mortgage, or otherwise encumber foreclosed
estate [Rule 89, Section 7] If the deceased was a mortgagee or assignee of
8.4.1 The executor or administrator shall file a the right of a mortgagee, the mortgage may be
written petition, setting forth: a) the debts due foreclosed by the executor or administrator.
from the deceased; b) the expenses of [Rule 87, Section 5]
administration, c) the legacies, d) the value of
the personal estate; e) the situation of the 9.4 Proceedings when property concealed,
estate to be sold, mortgaged, or otherwise embezzled, or fraudulently conveyed [Rule
encumbered; and f) such other facts as will 87, Section 6]
show that the sale, mortgage, or other 9.4.1 When a person is suspected of having
encumbrance is necessary or beneficial. concealed, embezzled, or conveyed away any
8.4.2 The court shall then cause notice to be of the money or chattels of the deceased, or
given personally or by mail to the persons when such person possesses or knows of a
interested, stating the nature of the petition, document which contains evidence of or tends
the reason for the same, and the time and to disclose the right of the deceased to real or
place of hearing. The court may cause further personal estate, or his last will and testament,
notice by publication or otherwise. the court may cite such suspected person to
8.4.3 The court may direct the executor or appear or to answer, and may examine him on
administrator to give an additional bond to oath on the matter of such complaint.
account for the proceeds of the sale, mortgage,
or other encumbrance. 9.4.2 If the person so cited refuses to appear
8.4.4 The court may authorize the executor or and give rogatories, the court may punish him
administrator to sell, mortgage or otherwise for contempt and may commit him to prison
encumber such part of the estate as is deemed until he submits to the order of the court. [The
necessary. The court may authorize the sale to interrogatories, if any, and his answers thereto,
shall be in writing and shall be filed in court.]
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SPECIAL PROCEEDINGS
10. Money Claims against the Estate; 10.5 Time bar [Rule 86, Section 5]
Notice to Creditors Claims that are not filed within the time limited
Immediately after granting letters testamentary in the notice, are barred forever, except that
or of administration, the court shall issue a they may be set forth as counterclaims in any
notice requiring all persons having money action that the executor or administrator may
claims against the decedent to file them in the bring against the claimants.
office of the clerk of court. [Rule 86, Section 1]
10.6 Set off [Rule 86, Section 5]
10.1 Time within which claims shall be filed Where an executor or administrator
commences an action, or prosecutes an action
Page 11
SPECIAL PROCEEDINGS
already commenced by the deceased in his against the executor or administrator that he
lifetime, the debtor may set forth in an action pay shall not create any lien upon the property
by the executor or administrator against him, of the estate, or give to the judgment creditor
by answer the claims he has against the any priority of payment.
decedent, instead of presenting them
independently as a claim against the estate, 11. Payment of Debts
and mutual claims may be set off against each If there are sufficient assets to pay the debts,
other in such action. Claims not yet due, or the executor or administrator shall pay the
contingent, may be approved at their present same within the time limited for that purpose.
value. [Rule 88, Section 1]
10.7 How to file a claim [Rule 86, Section 11.1 Source of payment as designated by
9] the testator [Rule 88, Section 2]
A claim may be filed by delivering the same The debts of the testator, the expenses of
with the necessary vouchers to the clerk of administration, or family expenses, shall be
court and by serving a copy thereof on the paid according to the provisions of the will if the
executor or administrator. testator makes provision by his will or
If the claim be founded on a bond, etc.: designates the estate to be appropriated for the
payment. If the provision or the estate is not
General rule: The original need not be filed but sufficient, such part of the estate not disposed
a copy thereof with all indorsements shall be of by will, if any, shall be appropriated for that
attached to the claim and filed therewith. purpose.
Exception: On demand of the executor or
administrator or by order of the court or judge, 11.2 Personalty first chargeable for debts,
the original shall be exhibited. then realty [Rule 88, Section 3]
Exception to the exception: The original need The personal estate of the deceased not
not be filed if it is lost or destroyed. [The disposed of by will shall first be chargeable with
claimant must accompany his claim with the payment of debts and expenses. If it is not
affidavit/s containing a copy or particular sufficient, or its sale would be detrimental to
description of the instrument and stating its the participants of the estate, the whole of the
loss or destruction. real estate not disposed of by will, or so much
thereof as is necessary, may be sold,
10.7.1 If the claim is not due, or is contingent, it mortgaged, or otherwise encumbered by the
must also be supported by affidavit stating the executor or administrator, after obtaining the
particulars thereof. When the affidavit is made authority of the court therefor.
by a person other than the claimant, he must Any deficiency shall be met by contributions in
set forth therein the reason why it is not made accordance with the provisions of Section 6.
by the claimant.
11.3 Preference of payment if estate
10.7.2 The court, in its discretion, and as a insolvent [Rule 88, Section 7]
matter of convenience, may order all the claims If the assets are not sufficient for the payment
to be collected in a separate folder. of debts, they shall be paid in accordance with
the provisions of Articles 1059 and 2239 to
10.8 Disposition of admitted claim [Rule 2251 of the Civil Code on concurrence and
86, Section 11] preference of credits.
Any claim admitted by the executor or
administrator shall immediately be 11.4 When and how claim proved outside
submitted by the clerk to the court who may the Philippines against insolvent
approve the same without hearing; but the resident's estate paid [Rule 88, Section
court may order that known heirs, legatees, or 10]
devisees be notified and heard. If claims have been duly proven in another
country against the estate of an insolvent who
10.9 Trial of contested claim [Rule 86, was at the time of his death an inhabitant of the
Section 12] Philippines, and that the local executor or
Upon the filing of an answer or upon the administrator knew of such claims and had an
expiration of the time for such filing, the clerk of opportunity to contest their allowance, the
court shall set the claim for trial with notice to court shall add a certified list of such claims to
both parties. The court may refer the claim to a the list of claims proved in the Philippines so
commissioner. that a just distribution of the whole estate may
be made.
10.10 Judgment appealable
The judgment of the court approving or Note: The benefit of this and the preceding
disapproving a claim, is appealable. A judgment sections shall not be extended to the creditors
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SPECIAL PROCEEDINGS
it shall be a full satisfaction for his services 13.3 Grounds for removal; resignation [Rule 82,
unless by a written instrument filed in the court Section 2]
he renounces all claim to the compensation a) Neglects to render his/her account;
provided by the will. b) Neglects to settle his/her estate according to
law;
12.8 When executor or administrator to c) Neglects to perform an order or judgment of
render account [Rule 85, Section 8] the court;
Every executor or administrator shall render an d) Absconds;
account of his administration within one (1) e) Insanity
year from the time of receiving letters f) Incapable or unsuitable for the discharge of
testamentary or of administration, unless the the trust
court otherwise directs because of extensions
of time: a) for presenting claims against, or
paying the debts of, the estate; or b) for 13.4 Other grounds [based on
disposing of the estate. He shall render such jurisprudence]:
further accounts as the court may require until a) Lack of harmony or conflict of interest
the estate is wholly settled. between the administrator and the persons
interested in the estate; [Padilla vs. Jugo, 64
12.9 Examinations on oath with respect to Phil 888]
account [Rule 85, Section 9] b) False representations [Cobarrubias vs. Dizon,
12.9.1 The court may examine the executor or 76 Phil 209]
administrator upon oath with respect to every c) Physical incapacity [De Borja vs. Tan, 93 Phil
matter relating to any account rendered by him 656]
and shall so examine him as to the correctness d) Delays in the winding and settlement of
of his account before the same is allowed. The estate [Lizarraga Hermanos vs. Abada, 40 Phil
exception to this rule is when no objection is 124]
made to the allowance of the account and its
correctness is satisfactorily established by 13.5 Lawful acts of the executor or
competent proof. administrator before revocation or resignation
12.9.2 The heirs, legatees, distributees, and are valid. [Rule 82, Section 3]
creditors of the estate and the executor or
administrator may be examined on oath on any 13.6 A removed administrator who continues to
matter relating to an administration account. act becomes a de facto administrator until he
12.10 Notice to examine the account of the deliver the estate to a new administrator and is
executor or administrator [Rule 85, Section 10] subject to the orders of the court, and can be
Before the account of an executor or required to account for products of the estate.
administrator is allowed, notice shall be given [Orance vs. Lapuz, 69 Phil 395]
to persons interested of the time and place of
examining and allowing the same. Such notice 13.7 Powers of the new executor or
may be given personally or by advertisement in administrator [Rule 82, Section 4]
a newspaper or newspapers, or both, as the *same as his predecessor
court directs. [Rule 85, Section 10] a) Defend or prosecute actions commenced or
A person liable as surety in respect to such defended by the previous administrator;
account may, upon application, be admitted as b) To have executed judgments recovered for
party to such accounting. [Rule 85, Section 11] the estate by the previous administrator;
c) To have renewed authority to sell or
13. Revocation of Administration; Death; mortgage real property obtained by the
Resignation; Removal previous administrator, without further notice or
13.1 If after letters of administration have been hearing;
granted, the decedent’s will is proved and
allowed by the court. [Rule 82, Section 1] Note: The new power to sell or mortgage real
estate of the deceased must be renewed in the
13.2 Effects of the revocation [Rule 82, Section name of the newly appointed executor or
1] administrator.
a) All powers of administration shall cease.
b) The administrator shall forthwith surrender D. Distribution and Partition
his letters to the court. The distribution of the estate can only be made
c) The administrator shall render his account after strict compliance with the provisions in
within such time as the court directs. Rule 90.
d) Proceedings for the issuance of letters
testamentary or of administration under the will 1. When Distribution is Made
shall be had. 1.1 Payment of obligations required [Rule 90,
Section 1, first paragraph]
Page 14
SPECIAL PROCEEDINGS
The estate may be distributed only if the debts, The practice in this jurisdiction is to prepare and
funeral charges, and expenses of present a project of partition to the court. It is
administration, the allowance to the widow, and merely a proposal for the distribution of the
inheritance tax, if any, have been paid. hereditary estate and to determine the persons
1.1.1 The court, on the application of the entitled thereto.
executor or administrator, or of a person
interested in the estate, and after hearing upon 5. Final Order of Partition; Recording the
notice, shall assign the residue of the estate to Order of Partition of the Estate [Rule 90,
the persons entitled to the same, naming them Section 4]
and the proportions, or parts, to which each is Certified copies of final orders and judgments of
entitled, and such persons may demand and the court relating to the real estate or partition
recover their respective shares from the thereof shall be recorded in the registry of
executor or administrator, or any other person deeds of the province where the property is
having the same in his possession. situated.
1.1.2 If there is a controversy as to who are the
lawful heirs of the deceased person or as to the III. Guardians
distributive shares to which each person is
entitled under the law, the controversy shall be A. Necessity for Guardianship
heard and decided as in ordinary cases. A court will have no jurisdiction to render
judgment against one adjudged physically and
1.2 Advance distribution [Rule 90, Section mentally incompetent to manage her affairs
1, second paragraph] where no guardian was appointed upon whom
No distribution shall be allowed until the summons and notice of the proceedings might
payment of the obligations above mentioned be served. [Gorostiaga vs. Sarte, 68 Phil 4,
has been made or provided for, unless the 1939]
distributees, or any of them, give a bond, in a
sum to be fixed by the court, conditioned for 1. The 'incompetent' as the subject of
the payment of said obligations within such guardianship
time as the court directs. a) Persons suffering from the penalty of civil
interdiction;
2. Partial distribution, without paying b) Hospitalized lepers;
estate taxes c) Prodigals;
A judge commits a grave abuse of discretion d) Deaf and dumb who are unable to read and
when he orders a partial distribution of the write;
estate without the payment of estate taxes. e) Those who are of unsound mind even though
[Vera vs. Navarro, No. L-27745, October 18, they may have lucid intervals; and
1977] f) Those who are not of unsound mind, but by
reason of age, disease, weak mind, and other
3. Expenses of partition [Rule 90, Section similar causes, cannot without outside aid, take
3] care of themselves and manage their property,
3.1 If at the time of the distribution the becoming thereby an easy prey for deceit and
executor or administrator has retained exploitation.
sufficient effects in his hands which may 2. Parents as guardians [Rule 93, Section
lawfully be applied for the expenses of partition 7]
of the properties distributed, such expenses of 2.1 When the property of the child under
partition may be paid by such executor or parental authority is worth P2,000 or less, the
administrator when it appears equitable to the father or the mother, without the necessity of
court and not inconsistent with the intention of court appointment, shall be his legal guardian.
the testator. 2.2 When the property of the child is worth
3.2 Otherwise, they shall be paid by the parties more than P2,000, the father or the mother
in proportion to their respective shares or shall be considered guardian of the child's
interest in the premises. property, with the duties and obligations of
3.2.1 The apportionment shall be settled guardians under these rules, and shall file the
and allowed by the court. petition required by the rules. For good reasons
3.2.2 If any person interested in the the court may, however, appoint another
partition does not pay his proportion or suitable person.
share, the court may issue an execution
in the name of the executor or B. Jurisdiction and Venue
administrator against the party not
paying for the sum assessed. 1. Transfer of venue [Rule 92, Section 3]
If the ward transfers his bona fide residence,
4. Project of Partition the court may transfer the guardianship case to
the court of the place of his residence wherein
Page 15
SPECIAL PROCEEDINGS
he has acquired real property, and additional 6. Guardian for the Estate of a Nonresident Who
court fees are not required. Has Estate in the Philippines [Rule 93, Section
2. The guardianship court cannot adjudicate 6]
title. [Parco vs. Court of Appeals, G.R. No. L- On notice, by publication or otherwise, and after
33152, January 30, 1982] the hearing, a guardian may be appointed for
the estate in the Philippines of a nonresident
C. Petition for Guardianship minor or incompetent.
1. Who may file [Rule 93, Section 1] D. Guardian's Bond [Rule 94, Section 1]
Any relative, friend or other person on behalf of The guardian shall give a bond conditioned:
a resident minor or incompetent who has no a) To make a true and complete inventory
parent or lawful guardian, or the minor himself within three (3) months;
if fourteen years of age or over, may petition for b) To faithfully execute the duties of his trust;
the appointment of a general guardian for the to manage and dispose of the estate according
person or estate, or both, of such minor or to these rules for the best interests of the ward;
incompetent. and to provide for the proper care, custody and
education of the ward;
2. Contents of Petition [Rule 93, Section 2] c) To render a true and just account at the time
The petition shall allege: designated by these rules and such other times
a) The jurisdictional facts; as the court directs; and to settle his accounts
b) The minority or incompetency; with the court and deliver and pay over all the
c) The names, ages and residences of the estate, effects and moneys remaining in his
relatives of the minor or incompetent, and of hands, or due from him on such settlement, to
the persons having him in their care; the person lawfully entitled thereto at the
d) The probable value and character of his expiration of his trust; and
estate; and d) to perform all orders of the court.
e) The names of the person for whom letters of
guardianship are prayed. 1. New Bond [Rule 94, Section 2]
A new bond may be required and the old
Note: sureties discharged whenever it is deemed
2.1 The petition shall be verified. necessary, after due notice to interested
2.2 No defect in the petition or verification shall persons, when no injury can result therefrom to
render void the issuance of letters of those interested in the estate.
guardianship.
2. Bond to be Filed; Actions Thereon [Rule 94,
3. Notice of Hearing [Rule 93, Section 3] Section 3]
Reasonable notice of the hearing of the petition Every bond of a guardian shall be filed in the
shall be given to the persons mentioned in the office of the clerk of the court. In case of the
petition residing in the province, including the breach of a condition thereof, it may be
minor if above 14 years of age or the prosecuted in the same proceeding or in a
incompetent himself. The court may direct separate action for the use and benefit of the
other general or special notice to be given. ward or of any person legally interested in the
estate.
4. Grounds for Opposition [Rule 93, Section 4]
The petition may be opposed [must be written] E. General Powers and Duties
on the grounds of: 1. The guardian has the care and custody of the
a) majority of the alleged minor; person of the ward and/or the management of
b) competency of the alleged incompetent; or his estate. The guardian of the estate of a
c) unsuitability of the proposed guardian. nonresident shall have the management of all
the estate of the ward within the Philippines.
[Rule 96, Section 1]
2. The guardian should pay the ward's just
5. Order [Rule 93, Section 5] debts from his personal property and income of
At the hearing: a) the alleged incompetent must his real estate. If such is insufficient, payment
be present if able to attend; and b) it must be should be made out of the sale or encumbrance
shown that the required notice has been given. of real estate as authorized by the court. [Rule
Evidence will be heard and if it be proved that 96, Section 2]
the person in question is a minor or 3. The guardian must: a) settle all accounts of
incompetent, the court shall appoint a suitable his ward; b) demand, sue for, and receive all
guardian of his person or estate, or both. debts due him or may, with the approval of the
court, compound for the same and give
discharges to the debtor, on receiving a fair and
just dividend of the estate and effects; and c)
Page 16
SPECIAL PROCEEDINGS
appear for and represent his ward in all actions 2. If it seems that the sale or encumbrance is
and special proceedings, unless another person necessary or would be beneficial to the ward,
be appointed for that purpose. [Rule 96, Section the court shall make an order to show cause
3] why the prayer of the petition should not be
4. The estate should be managed frugally and granted. [Rule 95, Section 2]
without waste and the income and profits 3. The court may grant or refuse the prayer of
thereof must be applied to the comfortable and the petition as the best interests of the ward
suitable maintenance of the ward and his require. It shall also make such order as to
family. If such is insufficient, the guardian may costs of the hearing as may be just. [Rule 95,
sell or encumber the real estate upon being Section 3] The order to sell is valid for one (1)
authorized by court order. [Rule 96, Section 4] year. [Rule 95, Section 4] The court may order
5. The guardian may be authorized by the court investment of proceeds and may direct the
to join in an assent to a partition of real or management of the estate. [Rule 95, Section 5]
personal estate held by the ward jointly or in 4. The original bond of the guardian shall
common with others. [Rule 96, Section 5] answer for the proceeds of the sale, but the
Note: Such authority shall only be granted after court may require an additional bond as a
hearing, upon such notice to relatives of the condition for the granting of the order of sale.
ward as the court may direct and a careful [Rule 95, Section 4]
investigation as to the necessity and propriety 5. A court order authorizing the sale of a ward's
of the proposed action. property, is subject to appeal, not certiorari and
6. After making an inventory [which must be mandamus. [Lopez vs. Teodoro, 86 Phil 499,
sworn to by the guardian] after three (3) 1950]
months, the guardian is required to file an
inventory and accounting annually. [Rule 96, H. Petition for Termination of
Section 7] Guardianship
7. Upon the expiration of a year from the time
of his appointment, and as often thereafter as 1. Procedure [Rule 97, Section 1]
may be required, a guardian must present his 1.1 A person who has been declared
account to the court for settlement and incompetent for any reason, or his guardian,
allowance. [Rule 96, Section 8] relative, or friend may file a verified petition to
8. Upon complaint of any guardian or ward, or have his present competency judicially
of any person having actual or prospective determined.
interest in the estate of the ward [as creditor, Note: The petition shall be verified by oath and
heir or otherwise], a person suspected of shall state that such person is then competent.
embezzling or concealing property of the ward 1.2 Upon receiving the petition, the court shall
may be asked to appear for examination. [Rule fix a time for hearing the questions raised
96, Section 6] thereby, and cause reasonable notice thereof to
be given to the guardian of the person so
F. Compensation and Expenses [Rule 96, declared incompetent, and to the ward.
Section 8] 1.3 On trial, the guardian or relatives of the
In the settlement of account, the guardian is ward [and in the discretion of the court, any
allowed reasonable expenses incurred in the other person] may contest the right to the relief
execution of his trust and such compensation demanded. Witnesses may be called and
as the court deems just, not exceeding fifteen examined by the parties or by the court on its
percentum (15%) of the net income of the own motion.
ward. 1.4 If it be found after hearing that the person is
no longer incompetent, his competency shall be
G. Sale or Encumbrance adjudged and the guardianship shall cease.
1. Scenario/s:
1.1 The income of an estate under guardianship 2. Grounds for Removal [Rule 97, Section
is insufficient a) to maintain the ward and his 2]
family; or b) to maintain and educate the ward A guardian may be removed when s/he:
when a minor; or a) becomes insane,
1.2 It appears that it is for the benefit of the b) is otherwise incapable of discharging his
ward that his real estate or some part thereof trust,
be sold, or mortgaged or otherwise c) is unsuitable therefor,
encumbered, and the proceeds thereof be put d) has wasted or mismanaged the estate, or
out at interest, or invested in some productive e) has failed for thirty (30) days to render an
security, or in the improvement or security of account or make a return.
other real estate of the ward,
The guardian may present a verified petition for Note: A guardian may resign when it appears
leave to sell or encumber estate. [Rule 95, proper to allow the same. Upon his/her
Section 1]
Page 17
SPECIAL PROCEEDINGS
resignation or removal the court may appoint promulgated Executive Order No. 91 on
another in his place. December 23, 1986. It was published in the
Official Gazette on January 12, 1987. It should
3. Other Grounds for Termination have taken effect fifteen (15) days thereafter or
3.1 Marriage or voluntary emancipation of a on January 27, 1987.
minor ward terminates the guardianship of the 1.8. Republic Act No. 8552 provides that any
person of the ward, and shall enable the minor law, presidential decree or issuance, executive
to administer his property as though he were of order, letter of instruction, administrative order,
age. However, he cannot borrow money or rule, or regulation contrary to, or inconsistent
alienate or encumber real property without the with its provisions is repealed, modified or
consent of his father or mother, or guardian. He amended accordingly.
can sue and be sued in court only with the
assistance of his father, mother or guardian. Note: The provisions of Rules 99 and 100 in the
Upon the application of the ward or otherwise, Rules of Court should thus be considered
the guardians may be discharged if the amended.
guardianship is no longer necessary. [ Rule 97,
Section 3] 2. Petition for Adoption
3.2 Advanced age
The conclusion by the trial court that the 1. Who May Adopt [RA 8552, Section 7]
guardian of advanced age is not fit to continue, a) Any Filipino citizen of legal age, in possession
is not to be disturbed, particularly with his delay of full civil capacity and legal rights, of good
in making an accounting and filing an inventory. moral character, has not been convicted of any
While age alone is not a controlling criterion, it crime involving moral turpitude, emotionally
may be a factor for consideration. [Francisco vs. and psychologically capable of caring for
Court of Appeals, No. L-57438, January 31, children, at least sixteen (16) years older than
1984] the adoptee, and who is in a position to support
and care for his/her children in keeping with the
means of the family.
IV. Adoption
Note: The requirement of sixteen (16) year
1. Governing Laws difference between the age of the adopter and
1.1 The basic governing law on domestic adoptee may be waived when the adopter is
adoption is found in Republic Act No. 8552 [An the biological parent of the adoptee, or is the
Act Establishing the Rules and Policies on the spouse of the adoptee's parent.
Domestic Adoption of Filipino Children]. It was
approved on February 25, 1998. It took effect b) Any alien possessing the same qualifications
fifteen (15) days after its complete publication as above stated for Filipino nationals: Provided,
in a newspaper of general circulation in the That his/her country has diplomatic relations
Official Gazette. with the Republic of the Philippines, that s/he
1.2. On December 2, 1998, Rules and has been living in the Philippines for at least
Regulations to Implement the Domestic three (3) continuous years prior to the filing of
Adoption Act of 1998 were promulgated to the application for adoption and maintains such
govern the adoption of Filipino children within residence until the adoption decree is entered,
the Philippines. that s/he has been certified by his/her
1.3. Foreign adoptions are governed by diplomatic or consular office or any appropriate
Republic Act No. 8043 [An Act Establishing the government agency that s/he has the legal
Rules to Govern Inter-Country Adoption of capacity to adopt in his/her country, and that
Filipino Children] approved on June 2, 1995. his/her government allows the adoptee to enter
1.4. Prior laws on adoption include provisions in his/her country as his/her adopted
the Child and Youth Welfare Code (Presidential son/daughter: Provided, Further, That the
Decree No. 603), the Family Code, and requirements on residency and certification of
Executive Order No. 91. the alien's qualification to adopt in his/her
1.5. The Family Code expressly repealed country may be waived for the following:
Articles 17-19, 27-31, 39-42 of the Civil Code (i) a former Filipino citizen who seeks to adopt a
and Articles 27-29, 31, 33 and 35 of Presidential relative within the fourth (4th) degree of
Decree No. 603. consanguinity or affinity; or
1.6. The Civil Code provisions, however, were (ii) one who seeks to adopt the legitimate
expressly repealed by the provisions of P.D. No. son/daughter of his/her Filipino spouse; or
603, which took effect in 1975, or six months (iii) one who is married to a Filipino citizen and
after its approval on December 10, 1974. seeks to adopt jointly with his/her spouse a
1.7. About six months before the Family Code relative within the fourth (4th) degree of
was signed by President Corazon C. Aquino as consanguinity or affinity of the Filipino spouse;
Executive Order No. 209 on July 6, 1987, she or
Page 18
SPECIAL PROCEEDINGS
(iv) the guardian with respect to the ward after months after the issuance of the order. [Rule
the termination of the guardianship and 99, Section 4]
clearance of his/her financial accountabilities.
4.4 Publication of order
c) Husband and wife shall jointly adopt, except The order shall direct that a copy thereof be
in the following cases [RA 8552, Section 7]: published before the hearing once a week for
(i) if one spouse seeks to adopt the legitimate three (3) successive weeks in a newspaper of
son/daughter of the other; or general circulation in the province.
(ii) if one spouse seeks to adopt his/her own
illegitimate son/daughter: Provided, However, 4.5 Case study
that the other spouse has signified his/her No petition for adoption shall be set for hearing
consent thereto; or unless a licensed social worker of the
(iii) if the spouses are legally separated from Department, the social service office of the
each other. local government unit, or any child-placing or
child-caring agency has made a case study of
In case husband and wife jointly adopt, or one the adoptee, his/her biological parent(s), as well
spouse adopts the illegitimate son/daughter of as the adopter(s), and has submitted the report
the other, joint parental authority shall be and recommendations on the matter to the
exercised by the spouses. court.
must complete the six (6)-month trial custody 1. Grounds for Rescission
except for those enumerated in Sec.7(b)(i)(ii) Upon petition of the adoptee, with the
(iii). assistance of the DSWD if a minor or if over
4.9.2 If the child is below seven (7) years of age eighteen (18) years of age but is incapacitated,
and is placed with the prospective adopter as guardian/counsel, the adoption may be
through a pre-adoption placement authority rescinded on any of the following grounds
issued by the Department, the prospective committed by the adopter(s) [RA 8552, Section
adopter shall enjoy all the benefits to which 15]:
biological parents are entitled from the date the a) repeated physical and verbal maltreatment
adoptee is placed with the prospective adopter. by the adopter(s) despite having undergone
[RA 8552, Section 12] counselling;
b) attempt on the life of the adoptee;
4.10 Decree of adoption c) sexual assault or violence; or
If, after the publication of the order of hearing, d) abandonment and failure to comply with
no opposition has been interposed, and after parental obligations.
consideration of the case studies, the
qualifications of the adopter, the trial custody 2. Who May File a Petition for Rescission
report, and the evidence submitted, the court is of Adoption
convinced that the petitioners are qualified to A minor or other incapacitated person may,
adopt, and that the adoption would redound to through a guardian or guardian ad litem, file the
the best interest of the adoptee, a decree of petition for rescission of adoption. Under Rep.
adoption shall be entered. The decree shall Act No. 8552, Sec. 19, adoption, being in the
state the name by which the child is to be best interest of the child, shall not be subject to
known [RA 8552, Section 13] which shall be rescission by the adopter(s). However, the
effective as of the date the original petition was adopter(s) may disinherit the adoptee for
filed. causes provided in Article 919 of the Civil Code.
Note: This provision shall also apply in case the
petitioner dies before the issuance of the 3. Time to File Petition
decree of adoption to protect the interest of the The petition must be filed within five (5) years
adoptee. following attainment of majority, or following
recovery from incompetency.
Civil Registry Record
An amended certificate of birth, without any 4. Procedure
notation that it is an amended issue, shall be The court shall issue an order requiring the
issued by the Civil Registry, attesting to the fact adverse party to answer the petition within
that the adoptee is the child of the adopter by fifteen (15) days from receipt of a copy thereof.
being registered with his/her surname. The The order and a copy of the petition shall be
original certificate of birth shall be stamped served on the adverse party in such manner as
'cancelled' with the annotation of the issuance the court may direct. After trial, if the court
of an amended birth certificate in its place and finds the allegations of the petition to be true,
shall be sealed in the civil registry records. [RA the court shall render judgment ordering
8552, Section 14] rescission, with or without costs, as justice
requires.
Confidential Nature of Proceedings
5. Service of judgment
All hearings in adoption cases are confidential A certified copy of the judgment shall be served
and shall not be open to the public. All records, upon the civil registrar concerned. Within thirty
books, and papers relating to the adoption (30) days from rendition of the judgment, he
cases in the files of the court, the DWSD, or any shall enter the action in the civil register.
other agency or institution participating in the
adoption proceedings shall be kept strictly D. Inter-Country Adoption (Republic Act
confidential. The court may authorize the No. 8043):
necessary information to be released, if it is for
the best interest of the adoptee and the 1. Adoption by Aliens
disclosure is necessary, restricting the purposes The Family Code had provided that adoption by
for which it may be used. aliens of Filipino children, while generally
prohibited by the Code, shall be authorized in
Service of Judgment inter-country adoption as may be allowed by
The judgment shall be served by the clerk on law.
the civil registrar.
2. The Law and the Implementing Rules and
C. Rescission of Adoption Regulations
Page 20
SPECIAL PROCEEDINGS
The Inter-Country Adoption Act was thereafter Act. However, under the Domestic Adoption Act,
passed on June 7, 1995 and took effect fifteen they are qualified to adopt.
(15) days after publication in two (2)
newspapers of general circulation.. The 8.1 Article 184, Family Code provides that an
Implementing Rules and Regulations was alien cannot adopt under Philippine law except:
passed by the Inter-Country Adoption Board a) a former Filipino citizen who seeks to adopt a
[ICAB] which was thereby created. The relative by consanguinity; and
implementing rules, which were patterned after b) one who seeks to adopt the legitimate child
the 1993 Hague Convention, became effective of his or her Filipino spouse.
on January 17, 1996. It has been observed that
the implementing rules contain provisions 9. Case rulings
which are adopted from the Hague Convention 9.1 Where one of the spouses is an alien, they
but are not authorized by the law. are disqualified to adopt under Philippine laws.
[Republic vs. Court of Appeals and Hughes, G.R.
3. The Process No. 100835, October 26, 1993]
The process of inter-country adoption refers to 9.2 Husband and wife must jointly adopt.
the process of adopting a Filipino child by a [Republic vs. Toledano, G.R. No. 94147, June 8,
foreigner or by a Filipino citizen permanently 1994]
residing abroad where the petition is filed. The 9.3 Non-resident aliens cannot adopt. [Brehm
supervised child custody is undertaken and the vs. Republic, G.R. No. L-18566, September 30,
decree of adoption is issued outside the 1963]
Philippines.
the committed child, children with cerebral unknown or uncertain, such officer or person
palsy, discharge of a child judicially committed, may be described by an assumed appellation,
discharge of child voluntarily committed, report and the person who is served with the writ shall
on conduct of child, and related provisions, be deemed the person intended;
please refer to PD 603, Articles 178 to 204. c) The place where he is so imprisoned or
restrained, if known;
VI. Habeas Corpus d) A copy of the commitment or cause of
detention of such person, if it can be procured
1. Definition – Please refer to the Definition of without impairing the efficiency of the remedy;
Terms under the Introduction (Part I.) or, if the imprisonment or restraint is without
any legal authority, such fact shall appear.
Notes:
-Illegality of restraint reckoned as of the time of 5. When Writ Not Allowed [Rule 102, Section 4]
filing of petition 5.1 When:
-Hierarchy of courts not applied 5.1.1 The person alleged to be restrained of his
-Voluntary submission to unlawful restraint liberty is in the custody of an officer under
renders the petition for habeas corpus moot process issued by a court or judge or by virtue
and academic of a judgment or order of a court of record; and
5.1.2 The court or judge had jurisdiction to
- PRELIMINARY CITATION: issued by court issue the process, render the judgment, or
when it does not appear manifest or clear in the make the order.
application that the detention is illegal. Note: If the jurisdiction appears after the writ is
allowed, the person shall not be discharged by
2. To What Habeas Corpus Extends reason of any informality or defect in the
The writ of habeas corpus generally extends to process, judgment, or order.
all cases of illegal confinement or detention by 5.2 Nor shall anything in this rule be held to
which a person is: a) deprived of liberty; or b) authorize the discharge of a person charged
the rightful custody of a person is withheld from with or convicted of an offense in the
the person entitled thereto. [Rule 102, Section Philippines, or of a person suffering
1] There is restraint of liberty where one is imprisonment under lawful judgment.
deprived of freedom of action, such as the
freedom of locomotion. [Villavicencio vs. 6. Issuance of the Writ [Rule 102, Section 5]
Lukban, 39 Phil 778, 1919] The writ of habeas The clerk of the court shall issue the writ under
corpus is no longer available to one who is the seal of the court; or in case of emergency,
already out on bail. [Zacarias vs. Cruz, G.R. No. the judge may issue the writ under his own
L-25899, November 29, 1963] hand, and may depute any officer or person to
serve it.
3. Who May Grant the Writ [Rule 102, Section 2]
a) Supreme Court, or any member thereof, on 7. To Whom Writ Directed [Rule 102, Section 6]
any day and at any time; or 7.1 In case of imprisonment or restraint by an
b) Court of Appeals or any member thereof in officer: To the officer. The writ shall command
the instances authorized by law; him to have the body of the person restrained
Note [for a) and b)]: If so granted, it shall be of his liberty before the court or judge.
enforceable anywhere in the Philippines, and 7.2 In case of imprisonment or restraint by a
may be made returnable before the court or person not an officer: To an officer. The writ
any member thereof, or before the RTC, or any shall command him to take and have the body
judge thereof for the hearing and decision on of the person restrained of his liberty before the
the merits. court or judge and to summon the person by
c) RTC, or a judge thereof, on any day and at whom he is restrained then and there to appear
any time before said court or judge to show the cause of
Note: The writ is returnable before himself and the imprisonment or restraint.
enforceable only within his judicial district
8. How Prisoner Designated [Rule 102, Section
4. Requisites of Application [Rule 102, Section 7]
3] The person to be produced should be
The petition must be signed and verified either designated in the writ by his name, if known,
by the party for whose relief it is intended, or by but if his name is not known, he may be
some person on his behalf. It must set forth: otherwise described or identified.
a) That the person in whose behalf the
application is made is imprisoned or restrained 9. Where, By Whom, How Writ Served
of his liberty; Designated [Rule 102, Section 7]
b) The officer or name of the person by whom 9.1 It may be served in any province.
he is so imprisoned or restrained; or, if both are
Page 23
SPECIAL PROCEEDINGS
9.2 It may be served by the sheriff or other prisoner is not produced and in all other cases.
proper officer, or by a person deputed by the The exception to this rule is when the return is
court or judge. made and signed by a sworn public officer in his
9.3 I may be served by leaving the original with official capacity.[Rule 102, Section 11]
the person to whom it is directed and
preserving a copy on which to make return of 12. Hearing and Adjournments [Rule 102,
service. If that person cannot be found, or has Section 12
not the prisoner in his custody, then the service 12.1 When the writ is returned before one
shall be made on any other person having or judge, at a time when the court is in session, he
exercising such custody. may forthwith adjourn the case into the court,
and immediately proceed to hear and examine
10. How Writ Executed and Returned [Rule 102, the return;
Section 8] 12.2 unless for good cause shown the hearing is
The officer to whom the writ is directed shall: adjourned, in which event the court or judge
a) convey the person restrained, and named in shall make such order for the safekeeping of
the writ, before the judge allowing the writ, or, the person imprisoned or restrained as the
in case of his absence or disability, before some nature of the case requires.
other judge of the same court, on the day If the person imprisoned or restrained is not
specified in the writ, unless, from sickness or produced because of his alleged sickness or
infirmity of the person directed to be produced, infirmity, the court or judge must be satisfied
such person cannot, without danger, be brought that it is so grave that such person cannot be
before the court or judge; produced without danger, before hearing the
b) make due return of the writ, together with return.
the day and the cause of the caption and
restraint of such person according to the 13. When Person Lawfully Imprisoned
command thereof. Recommitted, and When Let to Bail [Rule 102,
Section 14]
Note: No writ of habeas corpus can be 13.1 If it appears that the prisoner was lawfully
disobeyed for defect of form. [Rule 102, Section committed, and charged with an offense
9] punishable by death, he shall not be released or
bailed.
11. Contents of Return [Rule 102, Section 10] 13.2 If he is lawfully imprisoned for an offense
The person who makes the return shall state not so punishable, he may be recommitted to
therein, and in other cases the person in whose imprisonment or admitted to bail in the
custody the prisoner is found shall state: discretion of the court or judge.
a) Whether he has or has not the party in his Note: If he is admitted to bail, he must file a
custody or power, or under restraint; bond. If such bond is not so filed, the prisoner
b) If he has the party in his custody, the shall be recommitted to confinement.
authority and the true and whole cause thereof,
with a copy of the writ or other process 14. When Prisoner Discharged If No Appeal (R
102, §15)
Note: If it appears that the prisoner is in When the court or judge has looked into the
custody under a warrant of commitment in cause of the restraint, and is satisfied that he is
pursuance of law, the return shall be considered unlawfully imprisoned he shall forthwith order
prima facie evidence of the cause of restraint. If his discharge. Such discharge shall not be
he is restrained of his liberty by any alleged effective until a copy of the order has been
private authority, the return shall be considered served on the officer or person detaining the
only as a plea of the facts therein set forth, and prisoner and the person detaining does not
the party claiming the custody must prove such desire to appeal.
facts. [Rule 102, Section 13]
15. Person Discharged Not to Be Again
c) If the party is in his custody and is not Imprisoned [Rule 102, Section 17]
produced, particularly the nature and gravity of 15.1 A person who is set at liberty upon a writ
the sickness or infirmity of such party by reason of habeas corpus shall not be again imprisoned
of which he cannot be brought before the court for the same offense unless by the lawful order
d) If he has had the party in his custody and has or process of a court having jurisdiction of the
transferred such custody to another, cause or offense.
particularly to whom, at what time, for what 15.2 A person who knowingly violated this shall
cause, and by what authority such transfer was forfeit to the party aggrieved the sum of
made. P1,000, to be recovered in a proper action and
may be punished with contempt.
Note: The return shall be signed by the person
who makes it. It shall be sworn to by him if the
Page 24
SPECIAL PROCEEDINGS
16. When Prisoner May Be Removed from One diff. situation. The Q to be resolved is whether
Custody to Another [Rule 102, Section 18] the State can reserve the power to re-arrest a
16.1 Grounds: person for an offense after a court of
competent jurisdiction has absolved him of the
a) by legal process, or offense. Such a reservation is repugnant to the
b) when the prisoner is be delivered to an government of laws & not of men principle.
inferior officer to carry to jail, or, Under this principle the moment a person is
c) by order of the proper court or judge, be acquitted on a crim charge he can no longer be
detained or re-arrested for the same offense.
removed from one place to another within the
Philippines for trial, or Alimpoos v. CA
d) in case of fire, epidemic, insurrection, or
other necessity or public calamity; and Facts: Reynaldo Mosquito has been accused of
16.2 In case of violation, a person who, after Robbery w/ less Serious Physical Injuries. He
such commitment, makes, signs, or was detained by virtue of a warrant of arrest
countersigns any order for such removal which was issued without the observance of
contrary to this section, shall forfeit to the party the legal requirements for the issuance
thereof. Mosquito filed a petition for Habeas
aggrieved the sum of P1000, to be recovered in Corpus before the Trial Court. Mosquito named
a proper action. as defendants in the case the Prov. Fiscal and
the private offended parties. he also filed a
claim for damages premised on Arts. 32 (4) and
CASES ON HABEAS CORPUS other applicable provisions of the Civil Code.
Moncupa v. Enrile
Issues:
Facts: Moncupa et al were arrested &
detained. He was alleged to be a National
Democratic Font staff member. A Presidential 1. WON the writ of Habeas Corpus if the proper
Commitment Order (PCO) was issued vs. them. remedy for Mosquito?
After 2 separate investigations, it was 2. WON damages may be awarded in a Habeas
ascertained that Moncupa was not a member of Corpus case?
any subversive organization. Both investigators 3. WON private offended party may take part
recommended his prosecution only for illegal in the case?
possession of firearms & subversive documents.
The petitioners’ motions for bail were deined.
Respondents claim that the privilege of the writ Held:
of HC had been suspended as to Moncupa &
filed a MTD stating “Since the pet. is free & no 1. The WHC is not the proper remedy. When a
longer under the custody of the resps., the warrant of arrest is being assailed for improper
present petition for HC may be deemed moot & preliminary investigation, the remedy is a
academic as in similar cases.” petition to quash the warrant of arrest or
petition for reinvestigation of the case. It is the
Held: Moncupa may have been released fr. his gen. rule that a HC shld. not be resorted to
detention cell, but the restraints attached to his when there is another remedy available.
temporary release preclude freedom of action &
under the Villavicencio v. Lukban rule warrant 2. No. Damages cannot be awarded. The sole
the Court’s relieving him of such restraints as function of the writ is to relieve fr. unlawful
may be illegal. It is not physical restraint alone imprisonment and ordinarily it cannot be
w/c is inquired into by the writ of habeas properly used for another purpose.
corpus.
3. While the issuance of the writ connotes the
The principle is clear. A release that commencement of a civil action, the
renders a pet. for a WHC moot & academic proceedings for HC is technically not yet a suit
must be one w/c is free fr. involuntary bet. private parties. The proper party is the
restraints. Where a person continues to be Chief of Police or the person having the accused
unlawfully denied one or more of his in detention and not the private offended party.
constitutional freedoms, where there is present It is also only the fiscal who may appeal the
a denial of due process, where the restraints order granting the writ as mandated by Sec. 19
are not merely involuntary but appear to be RULE 41 of the ROC.
unnecessary, & where a deprivation of freedom
originally valid has, in the light of subsequent
dev’ts., become arbitrary, the person concerned Salvana v. Saliendra
or those applying in his behalf may still avail
themselves of the privilege of the writ. Facts: Salvana and Saliendra are the parents
of 15 year old Felicisima Salvana. The minor is
Toyoto, et al. V. Ramos presently in the custody of a justice of peace.
The parents filed a petition for WHC to regain
parental authority over the minor. The pet. was
Facts: Petitioners temporarily released fr. denied on the ground that the parents are
detention. So, does writ lie? guilty of abusing their child by forcing her to
marry another against the her wishes.
Held: Ordinarily, a pet. for HC becomes mute
& epidemic (he he) when the restraint on the Issue: WON WHC should issue?
liberty of the pets. Is lifted either temporarily or
permanently. But the instant case presents a
Page 25
SPECIAL PROCEEDINGS
Held: It should issue. A WHC is the proper the remedy of appeal or certiorari because it
legal remedy to enable parents to regain the will not be permitted to perform the functions of
custody of a minor daughter even though the a writ of error or appeal for the purpose of
child is in custody of a 3rd person of her OWN reviewing mere errors or irregularities in the
FREE WILL. Neither the fact that the parents proceedings of a court having jurisdiction over
sought to compel her to marry against her the person & subject matter.
wishes a legal ground for depriving parents
their parental authority over the child as to Writ cannot be granted in the case at
deny them the right. bar since petitioners failed to adduce any
justification or exceptional circumstances which
SUAREZ VS. CA would warrant the grant of such writ. HC is not
ordinarily available in advance of trial to
Facts: Respondent Manese filed a petition for determine jurisdictional questions that may
writ of HC vs. petitioner Renato Suarez, his arise. In the absence of exceptional
mother & sister. She filed a motion to dismiss circumstances, the orderly course of trial should
without prejudice to her right to file another be pursued & the usual remedies exhausted
action for custody of minor, contending that the before the writ may be invoked. Petition for HC
issue as to who has rightful custody of the child is not the appropriate vehicle for asserting a
could be fully adjudicated in another action and right to bail or vindicating its denial.
not in the present action for HC. TC granted
motion but with prejudice. PEOPLE VS. FIGUEROA
Issue: WON order of dismissal with prejudice is FACTS: The accused were found by the
res judicata to present action for custody of Philippine Navy off the province of Palawan with
minor & support untaxed blue-seal cigarettes in their possession.
They were brought to Manila and investigated.
Held: The order of dismissal cannot be During this preliminary investigation, each of
considered as a valid adjudication on the merits the accused executed affidavits and waived
which would serve as a bar to the second action their rights under Art. 125 of the RPC (arbitrary
for custody of minor. TC dismissed the case detention). On recommendation of the Manila
without stating the reasons or the basis fiscal, the accused were brought back to
therefore, contrary to the constitutional Palawan and another preliminary investigation
mandate that decisions rendered by the court was held, allegedly for the purpose of
must clearly & distinctly state the law & facts “affirm(ing) the truth of the sworn statements.”
on which it is based. It is worthy to note though This time, however, the accused declined
that the ground upon which the motion to counsel and readily affirmed their previous
dismiss was filed was erroneous since the affidavits. Their counsel filed a MTQ, claiming
question as to who shall have custody of the that the information was filed without a
child can be sufficiently resolved in the petition preliminary investigation and, if there was, it
for writ of HC pursuant to Rule 102, ROC. was held in Manila and not Palawan where the
alleged crime was committed. The lower court
granted the MTQ, holding that the preliminary
The controversy in the instant case investigation was conducted “hurriedly”.
involves a litigation initiated by the natural
mother over the welfare & custody of her child, ISSUE: WON the trial court correctly dismissed
in which the State has a paramount interest. the information based on the lack of preliminary
The fundamental policy in the Constitution investigation.
promoting & protecting the welfare of children
should not be disregarded by a mere
technicality in resolving disputes which involve HELD: NO. Assuming that the trial court
the family & youth. felt that the accused should have been given
more “ample chance and opportunity to be
GALVEZ VS. CA heard in the preliminary investigation”, what it
should have properly done was not to dismiss
the information but to hold the case in
Facts: Three separate information (1 homicide, abeyance and conduct its own investigation or
2 frustrated homicide) were filed vs. Galvez require the fiscal to hold a reinvestigation. The
(incumbent mayor of one of the towns in absence of such investigation did not impair the
Bulacan ... Peter, don’t follow his footsteps, validity of the information or otherwise render it
OK?) for the alleged shooting of the Vinculados. defective. Much less did it affect the jurisdiction
Said infos. were later withdrawn in a Motion by of the lower court over the case.
the prosecutor, but on the same day, filed four
separate information (same three plus illegal
possession of firearms). Judge ordered the
arrest of the petitioners since no bail was ENRILE VS. SALAZAR
recommended.
FACTS: Juan Ponce Enrile, Gregorio Honasan,
Issue: WON petition for HC was properly and the Panlilio spouses were arrested by PNP
filed together with the present petition for agents on a warrant of arrest issued by Judge
certiorari and mandamus Salazar. They were denied bail, none being
recommended in the information which charged
them with the crime of rebellion with murder
Held: Writ of HC and certiorari may be and multiple frustrated murder allegedly
ancillary to each other where necessary to give committed during the failed coup attempt of
effect to the supervisory powers of the higher Dec. 1990. Enrile and the Panlilios filed this
courts. The writ reaches the body & petition for habeas corpus, invoking denial of
jurisdictional matters while certiorari reaches the constitutional right to bail.
the record. But HC does not lie where pet. has
Page 26
SPECIAL PROCEEDINGS
of the Republic of the Philippines. [Rule 91, except that the action shall be instituted in the
Section 1] province where the land lies in whole or in part.
3. Where filed: The petition is filed in the
Regional Trial Court where the deceased last VII. Change of Name
resided or in which he had property if he
resided out of the Philippines. [Rule 91, Section A. Name Defined
1] A name is that word or combination of words by
4. Contents of the petition: The petition shall which a person is distinguished from others and
set forth the facts and pray that the estate of which he bears as a label or appellation for the
the deceased be declared escheated. [Rule 91, convenience of the world at large in addressing
Section 1] him or in speaking of or dealing with him. [Yu
5. Order of Hearing vs. Republic, G.R. No. 20874, May 25, 1966]
The court shall fix a date and place for the
hearing of the petition, which date shall not be B. Procedure
more than six (6) months after the rendition of 1. Venue
the order. [Rule 91, Section 2] The petition shall be filed in the RTC (CFI) of the
6. Publication place of residence of the person desiring to
The order shall also direct that a copy thereof change his name. [Rule 103, Section 1]
shall be published at least once a week for six 2. Who May Petition for a Change of Name
(6) successive weeks in some newspaper of 2.1 A minor may sign and verify his petition for
general circulation in the province as the court a change of name subject to the required
deems best. [Rule 91, Section 2] assistance of a guardian ad litem, although the
7. Judgment absence of the latter does not void the
After hearing, the court shall adjudge the proceeding because it is amendable. [Tse vs.
properties escheated after payment of just Republic, G.R. No. 20708, August 31, 1967]
debts and charges, and the properties shall be 2.2 Resident aliens may also petition for a
assigned pursuant to law as follows: change of name. A nonresident alien may not
7.1 The personal estate shall be assigned to the avail himself of the same right; such a
municipality or city where the deceased last proceeding would not be of much benefit to
resided in the Philippines. him. [Ong Huan Tin vs. Republic, G.R. No.
7.2 The real estate shall be assigned to the 20997, April 27, 1967] But the petition will not
municipalities or cities, respectively, in which be entertained if petitioner’s citizenship is
the same is situated. either controverted or doubtful. [Basas vs.
7.3 If the deceased never resided in the Republic, G.R. No. 23595, February 20, 1968]
Philippines, the whole estate may be assigned
to the respective municipalities or cities where 3. Petition
the same is located. The petition shall be signed and verified by the
7.4 Such estate shall be for the benefit of public person desiring his name changed or some
schools, and public charitable institutions and other person on his behalf. It shall set forth:
centers in said municipalities or cities. [Rule 103, Section 2]
a) that he is a bona fide resident of the region
Note: The court may order the establishment of (province) for at least three (3) years;
a permanent trust so that only the income from b) the cause for the change of name;
the property shall be used. [Rule 91, Section 3] c) the name asked for
6. Resulting confusion
Legitimate minor children were not allowed to
adopt the surname of the mother’s second
C. Case Rulings husband, because there would be a false
1. Joinder of Causes of Action impression of their family relations, as it could
Petitions for adoption and change of name result in confusion in their paternity. [Padilla vs.
cannot be joined. They are not the same in Republic, No. L-28274, April 30, 1982]
nature and character nor do they present
common questions of law and fact. [Republic 7. Improving personality or social standing
vs. Hernandez, G.R. No. 117209, February 9, On the other hand, a natural child through her
1996] mother petitioned for a change of name to
adopt the surname of her stepfather. The
2. Resumption of Use of Maiden Name After Solicitor General argued that this would hide
Divorce the child’s illegitimacy. The Supreme Court held
The resumption by the wife of her maiden name that there was nothing wrong with it, and that a
after a Muslim divorce, is not change of name change of name may be asked to improve one’s
under Rule 103. The proceeding filed to resume personality or social standing and to promote
the use of the maiden name is a superfluity but his best interests as long as injury or prejudice
it is directory. [Yasin vs. Judge, Shari’a District is not caused to anyone. [Calderon vs. Republic,
Court, G.R. No. 94986, February 23, 1995] G.R. No. 18127, April 5, 1967]
b) the names, ages, and residences of the heirs Rule 108 RA 9048
instituted in the will, copy of which shall be 1. Subject Any act, event, Clerical or
presented, and of the relatives who would matter order or decree typographical
succeed by the law of intestacy; concerning the errors except
civil status of those involving
c) the names and residences of creditors and
persons which change in
others who may have any adverse interest over had been nationality, status
the property of the absentee; recorded in the or sex of person
d) the probable value, location and character of civil register
the property belonging to the absentee. 2. How By a petition By an affidavit
2.3 The court shall then fix a date and place for initiated
the hearing. Notice [at least ten (10) days 3. Where filed RTC where the Municipality/City
before the hearing] and publication [once a local civil Civil Registrar;
week for three (3) consecutive weeks in a register is Philippine Consul
newspaper of general circulation in the province located of the place where
the interested
or city where the absentee resides] are
person is residing
required. [Rule 107, Section 4]
4. Nature of Summary in Administrative
2.4 At the hearing, compliance with the proceedings nature if the
provisions of Section 4 must first be shown. correction is
Upon issuance of an order granting the petition, clerical or
the judge shall take the necessary measures to typographical
safeguard the rights and interests of the only
absentee and shall specify the powers, 5. Role of the The Solicitor The Solicitor
obligations and remuneration of his Solicitor General is General is not
representative, trustee or administrator, General made a party. made a party.
regulating them by the rules concerning 6. Necessity Hearing is Only an
of a hearing necessary. investigation may
guardians. [Rule 107, Section 6]
be conducted.
2.5 In case of declaration of absence: The order 7. Issuance of Preliminary No preliminary
shall not take effect until six (6) months after its a preliminary injunction may injunction can be
publication a) in a newspaper of general injunction be issued. issued.
circulation designated by the court; and b) in 8. Appeal To higher To the Civil
the Official Gazette. courts Register General
[CRG]
3. Preferences [Rule 107, Section 7] 9. Finality of Decision Decision becomes
The court may appoint as trustee or decision becomes final final after ten (10)
administrator or provisional representative: after fifteen days from receipt
(15) days from of CRG or by the
a) the spouse of the missing person if they are
receipt of aggrieved
not legally separated or if the spouse is not a judgment. petitioner on the
minor or otherwise incompetent; or, in default affirmation of
of the spouse, denial by the Civil
b) any competent person. Register General
10. Service of Judgment is Decision is
4. Termination [Rule 107, Section 8] judgment served on the entered directly
The appointment shall be terminated: Civil Registrar into the civil
a) if the absentee appears personally or by and entered register.
agent; into the civil
registry book.
b) when death is proved and the heirs appear;
or
c) when a third person acquires the property of 1. Who May File the Petition for the Cancellation
the absentee. or Correction of any Entry Relating thereto
Any person interested in any act, event, order
5. A wife filed a petition to declare her missing or decree concerning the civil status of persons
husband absent and presumed dead. But he left Which has been recorded in the civil register,
no property. HELD: There is no need for the may file a verified petition. [Rule 108, Section
petition. [Reyes vs. Alejandro, No. L-32026, 1]
January 16, 1986] A declaration of presumption
of death can never be final. [Jones vs. 2. Entries Subject to Cancellation or Correction
Hortiguela, 64 Phil 179, 1937] [Rule 108, Section 2]
a) births;
b) marriages;
10. Cancellation or Correction of Entries in c) deaths;
the Civil Registry d) legal separations;
e) judgments of annulments of marriage;
f) judgments declaring marriages void from the
beginning;
Page 30
SPECIAL PROCEEDINGS
6.2 Upon neglect or refusal to comply with the manner as will best effect the objects of the
order, the court shall declare such trust vacant trust.
and shall appoint a new trustee in whom the
trust estate shall vest in like manner as if he Note: Proceedings shall conform as nearly as
had been originally appointed by the court. may be to the provisions concerning the sale or
encumbrance by guardians of the property of
7. Bond [Rule 98, Sections 5 and 6] minors or other wards.
7.1 General Rule: Trustee must file bond.
Exceptions:
a) when the testator has directed or requested RULE 105 JUDICIAL APPROVAL OF VOLUN-
such exemption; and TARY RECOGNITION OF MINOR NATURAL
b) when all persons beneficially interested in CHILDREN
the trust, being of full age, request the
exemption. Sec. 1. Venue.-- Where judicial approval
of a voluntary recognition of a minor natural
Note: Such exemption may be cancelled by the child is required, such child or his parents
court at any time and the trustee required to shall obtain the same by filing a petition to
forthwith file a bond. that effect with the RTC in which the child re-
sides.
7.2 Conditions included in bond
a) make a true inventory of all the real and 1. MEANING OF VOLUNTARY
personal estate belonging to him as trustee; RECOGNITION
Note: The court may dispense with the making VOLUNTARY RECOGNITION is an admission of
and return of an inventory when the trustee is the fact of paternity or maternity by the
appointed as a successor to a prior trustee, if presumed parent, expressed in the form
an inventory has already been filed. [In such prescribed by the NCC.
case the condition of the bond shall be deemed
to be altered accordingly.] Its essence lies in the avowal of the parent that
the child is his; the formality is added to make
b) manage and dispose of all such estate, and the admission incontestable, in view of its
faithfully discharge his trust; consequences.
c) render upon oath at least once a year until
his trust is fulfilled, unless he is excused, a true The FORM is prescribed by Art. 278 of the NCC:
account of the property in his hands and of the RECOGNITION shall be made in the
management and disposition thereof; record of birth
d) at the expiration of his trust, settle his a will
accounts in court and pay over and deliver all a statement before a court of
the estate remaining in his hands record
or in any authentic writing.
9. Removal of Trustee [Rule 98, Section 8]
9.1 Procedure Judicial approval is needful if the recognition of
a) petition of the parties beneficially interested the minor is effected, not through a record of
b) due notice to the trustee and hearing birth or in a will but thorough a statement in a
court of record or an authentic document. In
9.2 Grounds any case, the individual recognized can impugn
a) The removal appears essential in the the recognition within 4 years following the
interests of the petitioners. attainment of majority.
b) The trustee is insane or otherwise incapable
of discharging his trust or is evidently Art. 281 (2) of the NCC provides:
unsuitable. When the recognition of a minor DOES NOT
take place
10. The trustee may resign his trust if it appears in a RECORD of BIRTH or
to the court proper to allow such resignation. in a WILL,
[Rule 98, Section 8] Judicial Approval is Necessary.
11. Sale or Encumbrance of Trust Estate [Rule The action must be brought within the same
98, Section 9] period specified in Art. 173, FC, except when
On petition and after due notice and hearing, the action is based on the second paragraph of
the court may order such sale or encumbrance Art. 172, in which case the action may be
to be made, and the reinvestment and brought during the lifetime of the alleged
application of the proceeds thereof in such parent.
Page 32
SPECIAL PROCEEDINGS
Art. 173, FC. The action to claim legitimacy DOCUMENT should appear of which NOTHING
may be brought by the child during his or her had been HEARD and
lifetime and shall be transmitted to the heirs in w/c either/ both parents recognize the child.
should the child
die during minority or In this case, the ACTION must be commenced
in a state of insanity. w/in 4 YRS. from the FINDING of the document.
In these cases, the heirs shall
have a period of 5 years within which to Pls. take note of the following NCC provisions
institute the action. which, although already repealed by the FC,
The action already commenced may still be applicable for lack of substitute
by the child shall survive notwithstanding the provisions on the matter. (Authorities said that
death of either or both of the parties. Art. 285 cited above is still applicable.
Commentaries and a 1989 case apply Arts. 278
Art. 172. The filiation of legitimate (or and 281. Herrera cited Art. 283 (1), but
illegitimate) children is established by any of mentioned Art. 449 of RPC, not NCC.)
the following:
(1) The Record of Birth appearing in the
Civil register or a final judgment; or NCC--Recognition Of Natural Children
(2) An admission of legitimate filiation in
a public document or a private handwritten 276. A NATURAL CHILD may be recognized by
instrument and signed by the parent the father and the mother JOINTLY, or by ONLY
concerned. ONE of them.
In the absence of the foregoing 277. In case the recognition is made by ONLY
evidence, the legitimate filiation shall be proved ONE of the parents, it shall be PRESUMED that
by: the child is NATURAL, IF the parent
(1) The Open and Continuous possession recognizing had LEGAL CAPACITY to contract
of the status of a legitimate child, or marriage at the time of conception.
(2) Any other means allowed by the
Rules of Court and special laws. 278. RECOGNITION shall be made in the
record of birth
2. HOW VOLUNTARY RECOGNITION a will
IS EXPRESSED a statement before a court of
record
AUTHENTIC WRITING means any Genuine and or in any authentic writing.
indubitable writing sufficient for compulsory
recognition. 279. A minor who may not contract marriage
w/o parental consent (18-21) CANNOT
The status of a person as a voluntary acknowledge a natural child
acknowledged natural child “could be UNLESS
established by the ordinary means of evidence parent/Guardian APPROVES the
without any limitations as to time.” (Larena vs. acknowledgment
Hubio) [See lecture notes below.] recoGnition is made in a WILL
NOTES: 280. When the FATHER or the MOTHER makes
the recognition SEPARATELY,
Q: When can the child file action? HE/SHE shall NOT REVEAL the
A: See Art. 173 above which provides when a name of the person with whom
child may bring an action; moreover, the he/she has the child;
following NCC provision which, although already
neither shall he/she STATE any
repealed by the Family Code, may still be
CIRCUMSTANCE whereby the other
applicable for lack of substitute provisions on
parent may be identified.
the matter.
281. A child who is OF AGE CANNOT BE
Art 285, NCC. The ACTION for the recognition
RECOGNIZED without his CONSENT.
of natural children may be brought ONLY during
the lifetime of the presumed parents,
When the recognition of a minor DOES
EXCEPT:
NOT take place
(1) If the Father/Mother DIED DURING the
MINORITY of the CHILD, in w/c case the latter in a RECORD of BIRTH or
may FILE ACTION BEFORE the expiration of 4 in a WILL,
YRS. from the attainment of his majority age. JUDICIAL APPROVAL IS NECESSARY.
(2) If AFTER the DEATH of the Father/Mother a
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SPECIAL PROCEEDINGS
A minor can in any case IMPUGN the recognition copy of the statement or writing being at-
within 4 YRS. ff. the attainment of his majority. tached to the petition.
282. A RECOGNIZED natural child has the right: Sec. 3. Order for Hearing.-- Upon the
(1) To BEAR THE SURNAME of the recognizing filing of the petition, the court, by an order
parent reciting the purpose of the same, shall
(2) To receive SUPPORT from such parent (291) fix the date and place for the hearing
(3) To receive in a proper case the hereditary thereof, which date shall not be more
portion w/c is determined by this code. than 6 months after the entry of the
order, and shall, moreover,
cause a copy of the order to be
INVOLUNTARY RECOGNITION: served personally or by mail upon the in-
terested parties, and
283. In any of the ff. cases, published once a week for 3 consecutive
the FATHER is OBLIGED to recognize the weeks, in a newspaper or newspapers
child as his natural child: of general circulation in the province.
(1) In cases of RAPE/ABDUCTION/SEDUCTION,
when the period of the offense coincides more Sec. 4. Opposition.-- Any interested
or less with that of conception; party must, within 15 days
(2) When the child is in CONTINUOUS from service, or
POSSESSION of the STATUS of a CHILD of the from the last date of publication of the or-
alleged father by the der referred to in the next preceding
DIRECT ACTS of the latter or section,
of his FAMILY file his opposition to the petition, stating
(3) When the child was CONCEIVED during the the grounds or reasons therefor.
time when the mother COHABITED with the
SUPPOSED father.
(4) When the child HAS in his favor ANY Sec. 5. Judgment.-- If, from the evi-
EVIDENCE or PROOF the defendant is his dence presented during the hearing, the court
father. is satisfied that the recognition of the minor
natural child was
284. The MOTHER is OBLIGED to recognize her willingly and voluntarily made by the par-
natural child: ent or parents concerned, and
(1) In any of the cases in the preceding article, is for the best interest of the child,
as between the child & the mother. it shall render judgment granting judicial
(2) When the BIRTH and the IDENTITY of the approval of such recognition.
child are CLEARLY PROVEN.
INVOLUNTARY RECOGNITION of a natural
286. The recognition made in favor of a child child may be made:
who
does not possess all the conditions in Art. (a) by an incontrovertible paper written by the
269, or parent expressly recognizing his paternity;
in w/c the requirements of the law have not (b) by giving such child the status of a natural
been fulfilled may be IMPUGNED by child of the father, justified by the direct act
those who are PREJUDICED by such recogni- of the father or his family [Art. 283(2)];
tion. (c) by criminal action for rape, seduction or ab-
duction (par. 2, Art. 449, RPC)
Sec. 2. Contents of petition.-- The pe-
tition for judicial approval of a voluntary NOTES: IMPT:
recognition of a minor natural child shall con-
tain the following allegations: Q: What if the presumed parents recognized
(a) The jurisdictional facts; the minor natural child either voluntarily or
(b) The names & residences of the par- involuntarily without judicial approval and
ents who acknowledged the child, or either of afterwards died, should the child, after reaching
them, and majority age, ask for judicial approval of such
their compulsory heirs, and the recognition?
person or persons with whom the child
lives; A: NO. Requirement of judicial approval is for
(c) The fact that the recognition made the BENEFIT OF THE MINOR. Lack of said JA
by the parent or parents took place cannot impede the effectivity of the judgment
in a statement before a court of record or made.
in an authentic writing,
The judicial approval is for the protection of
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SPECIAL PROCEEDINGS
the minor against any acknowledgment made material for the construction of the build-
to his prejudice. Therefore, the lack or insuffi- ing.
ciency of such approval is NOT a defect avail-
able to the recognizing parent but one which
the minor may raise or waive. If after reaching Modequillo vs. Salinas
the age of majority the minor consents to the
acknowledgment, the lack of judicial approval The debt or liability which was the basis of
should make no difference. the judgment arose or was incurred at the time
of the vehicular accident on 16 March 1976 and
Sec. 6. Service of judgment upon civ- the money judgment arising therefrom was ren-
il registrar.-- A copy of the judgment ren- dered by the appellate court on 29 January
dered in accordance with the preceding sec- 1988. Both preceded the effectivity of the FC
tion shall be served upon the civil registrar on August 4, 1988 (not August 3 –1988 being a
whose duty it shall be to enter the same in
leap year).
the register.
The contention that it should be
considered a family home from the time it was
RULE 106 CONSTITUTION OF FAMILY HOME occupied by petitioner and his family in 1969 is
not well-taken. Under Art. 162 of the FC, “The
Rule 106 is deemed repealed by the provi- provisions…shall govern existing family
sions of the Family Code. residences insofar as said provisions are
applicable.” It does not mean that ARTS. 152
FAMILY CODE and 153 have retroactive effect such that all
existing family residences are deemed to have
ART 152. The family home, constituted been constituted as family homes at the time of
jointly by the husband and the wife or by an their occupation prior to the effectivity of the FC
unmarried head of a family, is the dwelling
house where they and their family reside, and and are exempt from execution for the payment
the land on which it is situated. of obligations incurred before the effectivity of
the FC. Art. 162 simply means that all existing
ART. 153. The family home is deemed family residences at the time of the effectivity
constituted on a house and lot from the time of the FC are considered family homes and are
it is occupied as a family residence. From the prospectively entitled to the benefits accorded
time of its constitution and so long as any of to a family home.
the beneficiaries actually resides therein, the
family continues to be such and is exempt ART. 157. The actual value of the family
from execution, forced sale or attachment ex- home shall not exceed, at the time of its consti-
cept as hereinafter provided and to the extent tution, the amount of three hundred thousand
of the value allowed by law. pesos in urban areas, and two hundred thou-
sand pesos in rural areas, or such amounts as
There is no need to file verified petition may hereafter be fixed by law.
for constitution of family home under FC. In any event, if the value of the currency
changes after the adoption of this Code, the
ART. 154. The beneficiaries of a family value most favorable for the constitution of a
home are: family home shall be the basis of evaluation.
The husband and the wife, or an unmar- For purposes of this Art., urban areas are
ried person who is the head of a family; and deemed to include chartered cities and munici-
Their parents, ascendants, descendants, palities whose annual income at least equals
brothers and sisters, whether the relationship that legally required for chartered cities. All
be legitimate or illegitimate, who are living in others are deemed to be rural areas.
the family home and who depend upon the
head of the family for legal support. ART. 160. When a creditor whose claim is
not among those mentioned in Art. 155 obtains
ART. 155. The family home shall be ex- a judgment in his favor and he has reasonable
empt from execution, forced sale or attach- grounds to believe that the family home is actu-
ment except: ally worth more than the maximum amount
1) For nonpayment of taxes; fixed in Art. 157, he may apply to the court
2) For debts incurred prior to the constitution which rendered the judgment for an order di-
of the family home; recting the sale of the property under execu-
tion. The court shall so order if it finds that the
3) For debts secured by mortgages on the actual value of the family home exceeds the
premises before or after such constitution; maximum amount fixed by law as of the time of
and its constitution. If the increased actual value
4) For debts due to laborers, mechanics, ar- exceeds the max. amount and results from sub-
chitects, builders, materialmen and others sequent voluntary improvements introduced by
who have rendered service or furnished the person/s constituting the family home, by
Page 35
SPECIAL PROCEEDINGS
the owner/s of the property, the same rule and actually separate ones and a decision or final
procedure shall apply. order with respect to any claim can be
appealed. Necessarily the orig rec on appeal
At the execution sale, no bid below the must remain in the TC where other claims may
value allowed for a family shall be considered. still be pending.
The proceeds shall be applied first to the
amanita mentioned in 157 and to the liabilities Who May Appeal -- Interest Person
under the judgment and the costs. The excess,
if any, shall be delivered to the judgment credi-
tor. A stranger having neither material nor
direct interest in a testate or intestate has no rt
RULE 109 to appeal from any order issued herein.
APPEALS IN SPECIAL PROCEEDINGS
May appeal only when the order, decree,
Section 1. Orders or judgments from judgment constitutes a final determination of
which appeals may be taken. An interest- the rights of the appellants and the appeal shall
ed person may appeal in special proceedings affect every order, decree or judgment
from an order or judgment rendered by a RTC appealed from, and not merely the interest
or a Juvenile and Domestic Relations Court, which the appellants may have therein.
where such order or judgment:
(a) Allows or disallows a will; * May sometimes be interlocutory in nature if
(b) Determines who are the lawful heirs of a we were to consider it under civpro but it is final
deceased person, or the distributive in the sense that it disposes of rights and obli of
share of the estate to which such per- parties, e.g. declaration of incompetency –You
son is entitled; can appeal na although if viewed under civpro,
(c) Allows or disallows, in whole or in part, hindi pa ito final dahil wala pang na-aapoint na
any claim against the estate of a de-
cease person, or any claim presented guardian. In other words, hindi pa tapos iyong
on behalf of the estate in offset to a guardianship proc.
claim against it;
(d) Settles the account of an executor, ad- The fact that the admin did not prosecute the
min, trustee or guardian; appeal does not bar the lawful heirs of the
(e) Constitutes, in proceedings relating to deceased from doing so.
the settlement of the estate of a de- REASON: Lawful heirs are considered interest
cease person, or the admin of a party.
trustee or guardian, a final determina-
tion in the lower court of the rights of The validity of a judgment or order of a court
the party appealing, except that no ap-
entered in a spec pro cannot be assailed collat-
peal shall be allowed from the appoint-
ment of a special admin; and erally unless the ground for the attack is lack of
(f) Is the final order or judgment rendered in juris or fraud by the party sought to be charged
the case, and affects the substantial with it in its procurement.
rights of the person appealing, UNLESS
it be an order granting or denying a If the nullity of the judgment or order assailed is
motion for a new trial or for recon. for failure to comply with the statutory req.
which must be followed before such J/O may be
Sec. 1 (f). The unless clause here simply means entered, the remedy is to appeal from such, or
that in these two instances, you go on appeal if final, to apply for relief under R38.
immediately.
In a specpro, appeals may be taken at various
Enumeration is not exclusive, e.g., approval stages of the proceedings so song as the order,
of bond, declaration of incompetency for decree or judgment constitutes a final determi-
purposes of guardianship. nation of the rights of the parties so appealing.
seek redress by certiorari and mandamus, it not Appealable. This is a final determination
appearing that the lower court has acted with- of the rts of the parties thereunder.
out juris.
7. Order Annulling Appointment of Guardian
GENERAL PRINCIPLE: In the absence of Appealable. An order refusing to permit
statutory provisions directing otherwise, any a person to intervene in a probate proceeding
order, judgment or decree of the probate court where he claims to have acquired the interest
capable of being enforced, or taking effect of one of the heirs of the deceased is likewise
without further order, may be appealed from; appealable.
and that no action of the probate court can be
appealed from which requires a subsequent 8. Order Removing a Guardian
order or judgment to give it effect. e.g., An Appealable. Constitutes a final
order directing one to appear and submit to an determination of his rights. An order declaring
examination touching any property in his a guardian incompetent is likewise appealable.
possession belonging to an intestate, otherwise,
he shall be committed to prison, is 9. Inventories and Claims against the Estate
APPEALABLE. Re: inventories, claims against the
estate and sale of the property of the decedent
In this case, said person is legally are appealable.
interested in the order, thus entitled to appeal.
He need not be legally interested in the 10. Person declared incompetent
intestate proceedings proper. An order declaring one a spend thrift
and mentally and physically incompetent is
OTHER INSTANCES WHERE APPEAL IS appealable.
AVAILABLE
11. Order refusing to permit a party to inter-
1. Appeal by Surety vene
When a surety of an exec/admin of the
estate of a deceased person is admitted as a Appealable if the party seeking to intervene
party to an acctg made by such exec/admin is one who claims to have acquired the interest
under R. 85 Sec. 11, he may be allowed to of one of the heirs of the estate.
appeal from any order of the court approving or
disapproving such acctg. Orders that are not appealable
2 Appeal by Heir from Money Claim 1. Order directing admin to take action to
1) An heir, legatee or devisee who under R86 recover amount due to the estate;
S11 has been served with notice as to a interlocutory.
money claim against the estate may be al-
lowed to appeal from an order of the ct. ap- This is purely interlocutory and cannot
proving such claim. be the basis of an appeal. Why? Ewan ko. But
2) A creditor who under R87 S10 is allowed by I think it’s probably because of the application
the ct to bring an action for recovery of of the gen principle.
property may be allowed to appeal.
3) A spec admin may be allowed to appeal 2. Order made in admin proc relating to inclu-
from an order disallowing a will. sion or exclusion of items of property in the in-
ventory of exec/admin, interlocutory
3. Order for License to Sell
An order for license to sell real estate in This is purely discretionary, provisional
admin proc is appealable. and interlocutory. Subject to modification or
change at any time during the course of admin
4. Order Against Bond proc. Not conclusive of the rts of any one, and
Appealable. REASON: Such order the order is not final.
constitutes a definite pronouncement as relates
to his bond and to his movable property of 3. Order Appointing Special Admin/Receiv-
which he will be deprived. Thus, he can appeal. er
Merely incidental to judicial proceedings.
5. Order to contract Obligation The ct making the appt retains control over it
Appealable. REASON: It affects and that it may modify, rescind, or revoke the
substantial rights of the parties and may same on sufficient grounds at any time before
unnecessarily prolong the admin of the final judgment.
intestate estate to the detriment of the heirs.