REMEDIAL LAW (PART 1:

FIRST LEVEL COURTS)

CREATED BY: SAMANTHA V. MAKAYAN

When the time is right, I, the Lord,

will make it happen

PROFESSORS: JUDGE DOROTHY GRACE DAGUNA-INCIONG (CRIMPRO), ATTY. GABRIEL DELA PEÑA
(CIVPRO)
© BOOKs BY DEAN RIANO AND JUSTICE DE LEON | PPT LECTURES OF JUDGE GENER GITO
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
1. Judicial foreclosure (Rule 68)....................... 130
2. Extrajudicial foreclosure (Act No. 3135, as
amended) ................................................................... 132
3. The General Banking Law of 2000 (Sec. 47,
RA 8791)..................................................................... 132
H. PARTITION (RULE 69) .....................133
I. FORCIBLE ENTRY AND UNLAWFUL
DETAINER ....................................................134
1. Differentiated from accion publiciana and
accion reinvindicatoria ....................................... 134
2. Rule 70.................................................................... 135
Forcible entry ............................................................ 135
Unlawful detainer .................................................... 136
Procedure for forcible entry and unlawful
detainer ............................................................................. 137
J. CONTEMPT (RULE 71) .......................138
VI. SPECIAL PROCEEDINGS AND
SPECIAL WRITS ............................ 140
A. SETTLEMENT OF ESTATE OF
DECEASED PERSONS ..............................140
1. Venue and process (Rule 73) ........................ 140
Which court has jurisdiction .............................. 140
Venue in judicial settlement of estates .......... 140
Extent of jurisdiction of probate court ........... 141
Powers and duties of probate court ................ 141
2. Summary settlement of estates (Rule 74)
........................................................................................ 142
VII. EVIDENCE ............................... 160
Extrajudicial settlement by agreement between
heirs ............................................................................... 142
Remedies of aggrieved parties after
extrajudicial settlement of estate ..................... 143
Probate of will ........................................................... 144
3. Allowance or disallowance of wills (Rule 76)
........................................................................................ 145
Grounds for disallowing a will ........................... 146
4. Claims against the estate (Rule 86)........... 146
Claims that must be filed (Sec. 5) ..................... 146
5. Payment of the debts of the estate (Rule 88)
........................................................................................ 148
Payment of contingent claims (Secs. 4 & 5) . 149
6. Sales, mortgages, and other encumberance
of property of decedent (Rule 89) ................... 149
7. Distribution and partition (Rule 90)......... 150
When probate court loses jurisdiction ........... 150
Remedy of heir entitled to residue but not
given his share .......................................................... 150
B. ESCHEAT (RULE 91) ..........................151
C. GUARDIANSHIP.................................... 152
5 Remedial Law Reviewer by Sky Makayan
1. Venue (Rule 92).................................................. 152
2. Appointment of guardians (Rule 93)........ 152
3. General powers and duties of guardians
(Rule 96) .................................................................... 153
4. Termination of guardianship (Rule 97) .. 153
D. CHANGE OF NAME (RULE 103).... 153
E. CANCELLATION OR CORRECTION
OF ENTRIES IN THE CIVIL REGISTRY
(RULE 108) .................................................. 154
F. CLERICAL ERROR LAW (RA 9048)
........................................................................... 154
G. WRIT OF HABEAS CORPUS ............ 154
1. Rule 102................................................................. 154
2. Writ of habeas corpus in relation of custody
of minors (AM No. 03-04-04-SC) ..................... 156
H. WRIT OF AMPARO (AM NO. 07-9-
12-SC)............................................................. 156
I. WRIT OF HABEAS DATA (AM NO. 08-
1-16-SC) ........................................................ 157
J. RULES OF PROCEDURE ON
ENVIRONMENTAL CASES (AM NO. 09-
6-8-SC) ........................................................... 157
1. Temporary Environmental Protection Order
(TEPO) ........................................................................ 157
2. Writ of continuing mandamus .................... 158
3. Writ of kalikasan ............................................... 158
A. GENERAL CONCEPTS ........................ 160
1. Proof vs. Evidence ............................................. 160
2. Burden of proof vs. Burden of Evidence .. 161
3. Equipoise rule ..................................................... 161
B. ADMISSIBILITY .................................... 161
1. Requisites (Rule 128)....................................... 161
Relevancy ....................................................................161
Competency ................................................................162
2. Kinds of admissibility ...................................... 162
3. Classification of evidence ............................... 163
4. Exclusionary rules ............................................. 163
5. Judicial notice and judicial admissions (Rule
129) .............................................................................. 164
Judicial notice ............................................................164
Doctrine of processual presumption ................... 165
Judicial notice of municipal ordinances .............. 165
Judicial admission ....................................................166
C. OBJECT (REAL) EVIDENCE (RULE
130 A)............................................................. 167
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
VI. SPECIAL PROCEEDINGS AND
SPECIAL WRITS
A. SETTLEMENT OF ESTATE OF DECEASED
PERSONS
1. Venue and process (Rule 73)
Which court has jurisdiction
If the decedents is an inhabitant of the Philippines
at the time of his death, whether a citizen or an
alien, his will shall be proved, or letters of
administration granted, and his estate settled, in
the Court of First Instance in the province in
which he resides at the time of his death, and if he
is an inhabitant of a foreign country, the Court of
First Instance of any province in which he had
estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall
exercise jurisdiction to the exclusion of all other
courts.
The determination of which court exercises
jurisdiction over matters of probate depends
upon the gross value of the estate of the
decedent.
1. RA 7691 — MTC, MeTC and MCTC shall
exercise exclusive original jurisdiction over
probate proceedings, testate and intestate,
where the value of the estate does not exceed
P300,000 (outside Metro Manila) or where
such estate does not exceed P400,000 (in
Metro Manila).
2. RA 11576 — With respect to all matters of
probate, both testate and intestate, the law
increased the jurisdictional amount
cognizable by the RTC to P2,000,000.
NOTE: RA 11576 took effect last August 21, 2021;
bar coverage is only until June 30, 2021
Venue in judicial settlement of estates
The residence of the decedent at the time of
his death is determinative of the venue of the
proceeding.
1. If residing in the Philippines at time of death,
whether citizen or not — court of PLACE OF
RESIDENCE AT THE TIME OF DEATH.
2. If residing in a foreign country — court of
ANY PLACE WHERE HE HAD ESTATE.
The question of residence is determinative only of
the venue and does not affect the jurisdiction of
the court. Residence means his personal, actual or
physical habitation, his actual residence or place
140
of abode and not his permanent legal residence or
domicile.
Uriarte v. Court of First Instance
Venue is waivable. Thus, the fact that the estate
proceedings are initiated neither in the
decedent’s residence nor where the decedent’s
estate is located is not jurisdictional and may be
waived if not raised.
Court first taking cognizance of settlement of
estate of a decedent shall exercise jurisdiction to
the exclusion of all other courts. This is subject
to preferential jurisdiction of court where
TESTATE proceedings are filed.
Cases where two proceedings are filed, one
intestate and the other is testate:
1. Robertas v. Leonidas — intestate in CFI
Manila Branch 20; testate (reprobate) in CFI
Manila Branch 38.
Here, the SC gave priority to Branch 38. The
probate of the will is mandatory. It is
anomalous that the estate of a person who
died testate should be settled in an intestate
proceeding. Therefore, the intestate case
should be consolidated with the testate
proceeding and the judge assigned to the
testate proceeding should continue hearing
the two cases.
2. Uriarte v. CFI of Negros Occidental —
intestate in Negros court, testate in Manila
court.
Here, the SC gave priority to the Negros court.
Testate proceedings for the settlement of the
estate of a deceased person take precedence
over intestate proceedings for the same
purpose. Thus, if in the course of intestate
proceedings pending before a court of first
instance it is found that the decedent had left
a last will, proceedings for the probate of the
latter should replace the intestate
proceedings even if at that stage an
administrator had already been appointed,
the latter being required to render final
account and turn over the estate in his
possession to the executor subsequently
appointed. This, however, is understood to be
without prejudice that should the alleged last
will be rejected or is disapproved, the
proceeding shall continue as an intestacy.
This is a clear indication that proceedings for
the probate of a will enjoy priority over
intestate proceedings.
3. Cuenco v. CA — intestate in Cebu court,
testate in QC court.
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
Here, Here, the SC gave priority to the QC
court. Cebu court, upon learning that petition
for probate has been presented in another
court, may decline to take cognizance of
and hold in abeyance petition before it, and
instead DEFER to second court. If the will is
admitted to probate, it will definitely decline
to take cognizance.
The difference between Uriarte and Cuenco
rulings is that in Uriarte, there was showing that
petitioner in probate proceeding knew before
filing of petition in Manila that there was already
intestate proceeding in Negros.
Extent of jurisdiction of probate court
The main function of a probate court is to settle
and liquidate the estates of deceased person
either summarily or through the process of
administration.
The probate court exercises limited jurisdiction:
1. Probate court cannot adjudicate or determine
title to properties claimed to be a part of the
estate and equally claimed as belonging to
outside parties.
2. It can only determine whether or not they
should be included in the inventory or list of
properties to be administered by the
administrator.
3. Probate court can only pass upon questions of
title provisionally for the purpose of
determining whether a certain property
should or should not be included in the
inventory.
4. Parties have to resort to an ordinary action
for final determination of conflicting claims of
title.
GR: the jurisdiction of the probate court or an
intestate court does not extend to the
determination of questions of ownership that
arise during the proceedings.
XPNs: probate court is competent to decide
question of ownership when—
1. the interested parties are all heirs, OR
2. the question is one of collation or
advancement, OR
3. the parties consent to the assumption of
jurisdiction by the probate court AND
4. the rights of third parties are not impaired.
Powers and duties of probate court
1. Determine the heirs
2. Distribute the estate
Solivio v. CA
The better practice, however, for the heir who has
not received his share, is to demand his share
through a proper motion in the same probate or
141
administration proceedings, or for reopening of
the probate or administrative proceedings if it
had already been closed, and not through an
independent action, which would be tried by
another court or Judge which may thus reverse a
decision or order of the probate or intestate court
already final and executed and re-shuffle
properties long ago distributed and disposed of.
Heirs of Ypon v. Ricafrente
The rule that the determination of a decedent’s
lawful heirs should be made in the corresponding
special proceeding precludes the RTC, in an
ordinary action for cancellation of title and
reconveyance, from granting the same. By way of
exception, the need to institute a separate special
proceeding for the determination of heirship may
be dispensed with for the sake of practicality, as
when the parties in the civil case had voluntarily
submitted the issue to the trial court and already
presented their evidence regarding the issue of
heirship, and the RTC had consequently rendered
judgment thereon, or when a special proceeding
had been instituted but had been finally closed
and terminated, and hence, cannot be reopened.
Romero v. CA
It is within the jurisdiction of the probate court
(1) to approve the sale of properties of a deceased
person by his prospective heirs before final
adjudication; (2) to determine who are the heirs
of the decedent; (3) the recognition of a natural
child; (4) the status of a woman claiming to be the
legal wife of the decedent; (5) the legality of
disinheritance of an heir by the testator; (6) and
to pass upon the validity of a waiver of hereditary
rights.
Joaquino v. Reyes
Matters relating to the rights of filiation and
heirship must be ventilated in the proper probate
court in a special proceeding instituted precisely
for the purpose of determining such rights.
Agapay v. Palang
Questions as to who are the heirs of the decedent,
proof of filiation of illegitimate children and the
determination of the estate of the latter and
claims thereto should be ventilated in the proper
probate court or in a special proceeding instituted
for the purpose and cannot be adjudicated in the
instant ordinary civil action which is for recovery
of ownership and possession.
Gabatan v. CA
There appears to be only one parcel of land being
claimed by the contending parties as their
inheritance from Juan Gabatan. It would be more
practical to dispense with a separate special
proceeding for the determination of the status of
respondent as the sole heir of Juan Gabatan,
specially in light of the fact that the parties to Civil
Case No. 89-092, had voluntarily submitted the
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
issue to the RTC and already presented their
evidence regarding the issue of heirship in these
proceeding.
Capablanca v. Heirs of Pedro
Another case where there was no need for a
special proceeding for the determination of
heirship – When a sole heir filed a suit to cancel
title in the name of the adverse party over land
belonging to her uncle, the Supreme Court held
that no separate judicial declaration of heirship is
necessary for a sole heir to assert his or her right
to the property of the deceased.
Agtarap v. Agtarap
The jurisdiction of the probate court extends to
matters incidental or collateral to the settlement
and distribution of the estate, such as the
determination of the status of each heir and
whether the property in the inventory is conjugal
or exclusive property of the deceased spouse.
2. Summary settlement of estates (Rule 74)
Summary settlement of estate is a judicial
proceeding wherein, without the appointment of
executor or administrator, and without delay, the
competent court summarily proceeds to value the
estate of the decedent; ascertain his debts and
order payment thereof; allow his will if any;
declare his heirs, devisee and legatees; and
distribute his net estate among his known heirs,
devisees, and legatees, who shall thereupon be
entitled to receive and enter into the possession
of the parts of the estate so awarded to them,
respectively.
Extrajudicial settlement by agreement
between heirs
If the decedent left no will and no debts and the
heirs are all of age, or the minors are
represented by their judicial or legal
representatives duly authorized for the purpose,
the parties may without securing letters of
administration, divide the estate among
themselves as they see fit by means of a public
instrument filed in the office of the register of
deeds, and should they disagree, they may do so
in an ordinary action of partition.
If there is only one heir, he may adjudicate to
himself the entire estate by means of an affidavit
filled in the office of the register of deeds.
The parties to an extrajudicial settlement,
whether by public instrument or by stipulation in
a pending action for partition, or the sole heir who
adjudicates the entire estate to himself by means
of an affidavit shall file, simultaneously with
and as a condition precedent to the filing of the
public instrument, or stipulation in the action for
142
partition, or of the affidavit in the office of the
register of deeds, a bond with the said register of
deeds, in an amount equivalent to the value of the
personal property involved as certified to under
oath by the parties concerned and conditioned
upon the payment of any just claim that may be
filed under section 4 of this rule.
The fact of the extrajudicial settlement or
administration shall be published in a newspaper
of general circulation in the manner provided in
the next succeeding section; but no extrajudicial
settlement shall be binding upon any person
who has not participated therein or had no
notice thereof.
Requisites of extrajudicial settlement:
1. Decedent dies intestate
2. No outstanding debts at time of settlement
• It shall be presumed that the decedent
left no debts if no creditor files a petition
for letters of administration within two
(2) years after the death of the decedent.
3. Heirs all of legal age or minors represented by
judicial guardians or legal representatives
4. Settlement made in public instrument duly
filed with Register of Deeds
5. Publication in newspaper of general
circulation in the province once a week for 3
consecutive weeks
6. Bond equivalent to value of personal
property posted with Register of Deeds
• Bond is required only when personal
property is involved in the extrajudicial
settlement. Real estate is subject to lien in
favor of creditors, heirs or other persons
for 2 years from distribution of estate,
notwithstanding any transfers of real
estate that may have been made.
Butiong v. Plazo
GR: A person dies intestate, or, if testate, failed to
name an executor in his will or the executor o
named is incompetent, or refuses the trust, or fails
to furnish the bond equipped by the Rules of
Court, then the decedent's estate shall be
judicially administered and the competent court
shall appoint a qualified administrator the order
established in Section 6 of Rule 78 of the Rules of
Court.
XPN: An exception to this rule, however, is found
in Section 1 of Rule 4 wherein the heirs of a
decedent, who left no will and no debts due from
is estate, may divide the estate either
extrajudicially or in an ordinary action or
partition without submitting the same for judicial
administration nor applying for the appointment
of an administrator by the court. The reasons that
where the deceased dies without pending
obligations, there is no necessity for the
appointment of an administrator to administer
the. Estate for them and to deprive the real
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
owners of their possession to which they are
immediately entitled.
Options available when the deceased left no will
and no debts:
1. Extrajudicial settlement
2. Action for partition
3. Judicial administration
Two-year prescriptive period (Sec.4, Rule 74)
Section 4, Rule 74 provides for a two year
prescriptive period (1) to persons who have
participated or taken part or had notice of the
extrajudicial partition, and in addition (2) when
the provisions of Section 1 of Rule 74 have been
strictly complied with, i.e., that all the persons or
heirs of the decedent have taken part in the
extrajudicial settlement or are represented by
themselves or through guardians. (Pedrosa v. CA)
If it shall appear at any time within two (2) years
after the settlement and distribution of an estate
that an heir or other person has been unduly
deprived of his lawful participation in the estate,
such heir or such other person may compel the
settlement of the estate in the courts for the
purpose of satisfying such lawful participation.
And if within the same time of two (2) years, it
shall appear that there are debts outstanding
against the estate which have not been paid, or
that an heir or other person has been unduly
deprived of his lawful participation payable in
money, the court having jurisdiction of the estate
may, by order for that purpose, after hearing,
settle the amount of such debts or lawful
participation and order how much and in what
manner each distributee shall contribute in the
payment thereof, and may issue execution, if
circumstances require, against the bond provided
in the preceding section or against the real estate
belonging to the deceased, or both.
Affidavit of self-adjudication by sole heir
Adjudication by an heir of the decedent’s entire
estate to himself by means of an affidavit is
allowed only if he is the sole heir to the estate.
In the Matter of the Intestate Estate of Delgado
(2006)
Since Josefa Delgado had heirs other than
Guillermo Rustia, Guillermo could not have
validly adjudicated Josefa’s estate all to himself.
Rule 74, Section 1 of the Rules of Court is clear.
Adjudication by an heir of the decedent’s entire
estate to himself by means of an affidavit is
allowed only if he is the sole heir to the estate.
143
Remedies of aggrieved parties after
extrajudicial settlement of estate
Action for reconveyance
The remedy of an heir who did not participate
in, or had no knowledge of, the extrajudicial
partition is to file an action for reconveyance.
Teves v. CA, 1999
Prescriptive period for non-participants is 10
years. An action for reconveyance based upon an
implied trust pursuant to article 1456 of the Civil
Code prescribes in ten years from the
registration of the deed or from the issuance
of the title.
An action for reconveyance prescribes after a
period of 10 years from the date of the issuance of
new title if land was registered, or from the actual
notice of such if the land was unregistered. An
action for reconveyance is available to those
persons who have not participated in the
settlement and have no knowledge of such.
However, an action for reconveyance will not
pursue if the subject lot was sold to an innocent
purchaser for value. The remedy available in such
case would be an action for damages.
Macababbad vs. Masirag
Question: When is action for reconveyance
imprescriptible?
Answer: In actions for reconveyance of the
property predicated on the fact that the
conveyance complained of was null and void ab
initio, a claim of prescription of action would be
unavailing. The action or defense for the
declaration of the inexistence of a contract does
not prescribe.
Heirs of Saludares v. CA
The Court permitted the filing of an action for
reconveyance despite the lapse of ten years and
declared that said action, when based on fraud, is
imprescriptible as long as the land has not passed
to an innocent purchaser for value. But in all those
cases, the common factual backdrop was that the
registered owners were never in possession of
the disputed property. Instead, it was the persons
with the better right or the legal owners of the
land who had always been in possession of the
same. Thus, the Court allowed the action for
reconveyance to prosper in those cases despite
the lapse of more than ten years from the issuance
of title to the land.
Macababbad vs. Masirag
Question: Does the issuance of the certificates of
titles convert the action to one of reconveyance of
titled land which, under settled jurisprudence,
prescribes in ten (10) years?
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
Answer: No, the action remains imprescriptible.
The issuance of a certificate of title in their favor
could not vest upon them ownership of the entire
property; neither could it validate the purchase
thereof which is null and void. Registration does
not vest title; it is merely the evidence of such
title.
Roman Catholic Archbishop Of Tuguegarao vs.
Prudencio (2016)
This is a case of exclusion of the rightful heirs in
the partition of the estate of the deceased. It is
undisputed that respondents-appellees were
children of Felipe by his first marriage. Teodora,
Prudencio, Jr. and Leonora did not deny
respondents-appellees' relation with Felipe.
Despite this, however, Teodora, Prudencio, Jr. and
Leonora declared in the Extra-Judicial Partition
that they are the only living heirs of Felipe by
operation of law. They claimed that Felipe had no
child with his first wife Elena, in effect depriving
respondents-appellees of their rightful shares in
the estate of their parents. Considering that
respondents-appellees have neither knowledge
nor participation in the Extra-Judicial Partition,
the same is a total nullity. It is not binding upon
them.
Reillo vs. San Jose (2009)
A deed of extrajudicial partition executed without
including some of the heirs, who had no
knowledge of and consent to the same, is
fraudulent and vicious. The deed of settlement
made by petitioners was invalid because it
excluded respondents who were entitled to equal
shares in the subject property. Under the rule, no
extrajudicial settlement shall be binding upon any
person who has not participated therein or had no
notice thereof. Thus, the RTC correctly annulled
the Deed of Extrajudicial Settlement of Estate
Among Heirs with Waiver of Rights.
Action to annul fraudulent extrajudicial
settlement
In annulment of fraudulent extrajudicial
settlement, the action is imprescriptible. Do not
confuse this with action for reconveyance.
Bautista v. Bautista (2007)
Unquestionably, the Deed of Extra-judicial
Partition is invalid insofar as it affects the
legitimate share pertaining to the defendant-
appellee in the property in question. There can be
no question that the Deed of Extrajudicial
Partition was fraudulently obtained. Hence, an
action to set it aside on the ground of fraud could
be instituted. The deed of extrajudicial partition
in the case at bar being invalid, the action to have
it annulled does not prescribe.
144
NERI V. HEIRS OF UY (2012)
In the execution of the Extrajudicial Settlement
of the Estate with Absolute Deed of Sale in favor
of spouses Uy, all the heirs of Anunciacion
should have participated. Considering that
Eutropia and Victoria were admittedly
excluded and that then minors Rosa and
Douglas were not properly represented
therein, the settlement was not valid and
binding upon them and consequently, a total
nullity On the issue of prescription, the Court
agrees with petitioners that the present action
has not prescribed in so far as it seeks to annul
the extrajudicial settlement of the estate.
The prescriptive period of 2 years provided in
Section 1 Rule 74 of the Rules of Court reckoned
from the execution of the extrajudicial
settlement finds no application to petitioners
who were deprived of their lawful participation
in the subject estate. Besides, an "action or
defense for the declaration of the inexistence of
a contract does not prescribe" in accordance
with Article 1410 of the Civil Code.
However, the action to recover property held in
trust prescribes after 10 years from the time
the cause of action accrues, which is from the
time of actual notice in case of unregistered
deed. In this case, Eutropia, Victoria and
Douglas claimed to have knowledge of the
extrajudicial settlement with sale after the
death of their father, Enrique, in 1994 which
spouses Uy failed to refute. Hence, the
complaint filed in 1997 was well within the
prescriptive period of 10 years.
Probate of will
When a person died with a will, it is mandatory
that his will be probated, otherwise, it will be a
violation of public policy.
Maninang v. CA
Unless will is probated and notice given to the
whole world, the right of a person to dispose of his
property by will may be rendered nugatory.
Ralla vs. Judge Untalan
In testate succession, no valid partition among
heirs until after will has been probated.
Fernandez vs. Dimaguiba
Presentation of will cannot be dispensed with on
the ground of estoppel because public policy
requires that a will should be probated.
Probate court does not look into the intrinsic
validity
GR: Probate court’s authority is limited only to
extrinsic validity of the will:
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
1. Due execution – voluntariness of the testator
2. Testator’s testamentary capacity – he must be
of sound mind.
3. Legal solemnities and formalities as may be
provided by the law.
XPN: An exception of the rule was enunciated in
the case of Nuguid vs. Nuguid where the Supreme
Court ruled that the court may look into the
intrinsic validity of the will in exceptional
circumstances, such as when the will is void on its
face. In such a case, the probate court may pass
upon the intrinsic validity of the will, otherwise,
the probate of the will is an idle ceremony that
will be contrary to the expedient disposition of
cases.
3. Allowance or disallowance of wills (Rule
76)
Rule 76, Section 1. Who may petition for the
allowance of will. — Any executor, devisee, or
legatee named in a will, or any other person
interested in the estate, may, at any time after
the death of the testator, petition the court
having jurisdiction to have the will allowed,
whether the same be in his possession or not, or
is lost or destroyed.
The testator himself may, during his lifetime,
petition the court for the allowance of his will.
NOTE: It is important to distinguish an executor
from an administrator — An executor is a person
named by the testator in his will to administer the
estate of the testator. On the other hand, an
administrator is a person appointed by the court
to administer the estate of the decedent if he left
no will, or if the executor named in the will is
incompetent, refuses the trust, or fails to give a
bond.
Heirs, devisees, legatees, and executors to be
notified by mail or personally
According to the Rules, notice is required to be
personally given to known heirs, legatees, and
devisees of the testator. A perusal of the will
shows that respondent was instituted as the sole
heir of the decedent. Petitioners, as nephews and
nieces of the decedent, are neither compulsory
nor testate heirs who are entitled to be notified of
the probate proceedings under the Rules.
Respondent had no legal obligation to mention
petitioners in the petition for probate, or to
personally notify them of the same.
Alaban v. CA
Besides, assuming arguendo that petitioners are
entitled to be so notified, the purported infirmity
is cured by the publication of the notice. After all,
personal notice upon the heirs is a matter of
procedural convenience and not a own signature. If contested, the burden of
jurisdictional requisite.
145
Contents of the petition
A petition for the allowance of a will must show,
so far as known to the petitioner:
1. The jurisdictional facts;
2. The names, ages, and residences of the heirs,
legatees, and devisees of the testator or
decedent;
3. The probable value and character of the
property of the estate;
4. The name of the person for whom letters are
prayed;
5. If the will has not been delivered to the court,
the name of the person having custody of it.
But no defect in the petition shall render void the
allowance of the will, or the issuance of letters
testamentary or of administration with the will
annexed.
Notice and Hearing; Publication
When a will is delivered to, or a petition for
the allowance of a will is filed in, the court
having jurisdiction, such court shall fix a time
and place for proving the will when all
concerned may appear to contest the allowance
thereof, and shall cause notice of such time and
place to be published three (3) weeks
successively, previous to the time appointed, in a
newspaper of general circulation in the province.
No newspaper publication shall be made where
the petition for probate has been filed by the
testator himself.
Evidence introduced at probate of will
1. Publication
2. Notice of hearing served on known heirs,
legatees, devisees, etc. if places of residence
known
3. Testimony of subscribing witnesses (Non-
holographic will)
a. Uncontested – one witness sufficient
b. Contested – all the subscribing witnesses
and the notary public who notarized the
will
c. Holographic will
d. Uncontested – at least one witness who
knows handwriting and signature of
testator; expert testimony in the absence
of competent witness
e. Contested – at least 3 witnesses who
know handwriting of testator; expert
testimony in the absence of competent
witness
4. When the testator himself submitted his
holographic will for probate, if it is
uncontested, the testator only needs to affirm
that it is his will and the signature was his
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
proof lies with the contestant to disprove the 4. Claims against the estate (Rule 86)
due execution and genuineness of the will.

Grounds for disallowing a will Notice to creditors to be issued by court (Sec.

1)
Rule 76, Section 9. Grounds for disallowing
Immediately after granting letters testamentary
will. — The will shall be disallowed in any of the
or of administration, the court shall issue a notice
following cases:
requiring all persons having money claims
a. If not executed and attested as required by
against the decedent to file them in the office of
law;
the clerk of said court.
b. If the testator was insane, or otherwise
mentally incapable to make a will, at the
NOTE: Only those contracted BEFORE the
time of its execution;
decedent’s death may be brought under Rule 86.
c. If it was executed under duress, or the
influence of fear, or threats;
Time within which claims shall be filed (Sec. 2)
d. If it was procured by undue and improper
pressure and influence, on the part of the
GR: In the notice, the court shall state the time for
beneficiary, or of some other person for his
the filing of claims against the estate, which shall
benefit;
not be more than 12 not less than 6 months
e. If the signature of the testator was procured
after the date of the first publication of the
by fraud or trick, and he did not intend that
notice.
the instrument should be his will at the time
XPN: However, at any time before order of
of fixing his signature thereto.
distribution is entered, the creditor who failed to
file his claim within the time set may move to be
Art. 839, Civil Code. The will shall be
allowed to file such claim. Court may, for good
disallowed in any of the following cases:
cause shown and on such terms as are just, allow
1. If the formalities required by law have not
such claim to be filed within a period not
been complied with;
exceeding 1 month.
2. If the testator was insane, or otherwise
mentally incapable of making a will, at the
Barredo vs. CA
time of its execution;
One month does not commence from expiration
3. If it was executed through force or under
of the original period for filing claims. It begins
duress, or the influence of fear, or threats;
from the date of the order of the court allowing
4. If it was procured by undue and improper
said filing.
pressure and influence, on the part of the
beneficiary or of some other person;
Publication of notice to creditors (Sec. 3)
5. If the signature of the testator was procured
by fraud;
Every executor or administrator shall,
6. If the testator acted by mistake or did not
immediately after the notice to creditors is issued,
intend that the instrument he signed should
cause the same to be published 3 weeks
be his will at the time of affixing his
successively in a newspaper of general circulation
signature thereto.
in the province, and to be posted for the same
period in 4 public places in the province and in 2
These lists are exclusive; no other grounds can
public places in the municipality where the
serve to disallow a will.
decedent last resided.
Ajero v. CA
Villanueva vs. PNB
Example: If the testator fails to sign and date
Publication of notice to creditors is a constructive
some of the dispositions, the result is that these
notice to the whole world. Hence, the creditor
dispositions cannot be effectuated. Such failure
cannot be permitted to file his claim beyond the
does not render the whole testament void
period fixed in the notice on the ground that he
EXCEPT if the unauthenticated alterations,
had no knowledge of the administration
cancellations or insertions were made on the date
proceedings.
of the holographic will or on the testator's
signature.
Claims that must be filed (Sec. 5)

1. All claims for money against the decedent,

arising from contract, express or implied,
whether the same be due, not due, or
contingent;

146 Remedial Law Reviewer by Sky Makayan

 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
Metropolitan Bank & Trust Company vs.
Absolute Management Corporation
Implied contract includes quasi contract
based on solutio indebiti (unjust
enrichment). Metrobank’s claim against
Chua’s estate is based on a quasi-contract. It
should reimburse Metrobank in case
Metrobank would be held liable in the third-
party complaint filed against it by AMC.
2. All claims for funeral expenses and
expenses for the last sickness of the
decedent; and
3. Judgment for money against the decedent
Evangelista vs. La Provedra
The judgment must be presented as a claim
against the estate where the judgment debtor
dies before levy on execution of his
properties.
NOTES:
• Must be filed within the time limited in
the notice; otherwise they are barred
forever, except that they may be set
forth as counterclaims in any action
that the executor or administrator
may bring against the claimants.
• The judgment of the court approving
or disapproving a claim shall be
appealable. (Sec. 13)
Money claims against a deceased debtor
Stronghold Insurance Company, Inc. vs.
Republic-Asahi Glass Corporation
Section 5 of Rule 86 of the Rules of Court
expressly allows the prosecution of money claims
arising from a contract against the estate of a
deceased debtor. Those claims are not actually
extinguished. What is extinguished is only the
obligee’s action or suit filed before the court,
which is not then acting as a probate court. In the
present case, whatever monetary liabilities or
obligations Santos had under his contracts with
respondent were not intransmissible by their
nature, by stipulation, or by provision of law.
Hence, his death did not result in the
extinguishment of those obligations or liabilities,
which merely passed on to his estate. Death is not
a defense that he or his estate can set up to wipe
out the obligations under the performance bond.
Sheker vs. Estate of Alice Sheker
A money claim is only an incidental matter in the
main action for the settlement of the decedent's
estate; more so if the claim is contingent since the
claimant cannot even institute a separate action
for a mere contingent claim. Hence, herein
petitioner's contingent money claim, not being an
initiatory pleading, does not require a
certification against non-forum shopping.
147
NOTE:
• Only money claims may be presented in the
testate or intestate proceedings.
• Not all money claims but only those arising
upon a liability contracted by decedent
before his death.
• Claims arising after his death cannot be
presented EXCEPT funeral expenses and
expenses for last sickness. Claims arising
after the decedent’s death may be allowed as
expenses of administration.
• Only claims for money, debt or interest
thereon, arising from contract can be
presented in the testate or intestate
proceedings.
3 ways by which a creditor may prosecute his
contractual money claim against the estate:
1. Creditor may file his money claim within the
period fixed by the court which is not more
than 12 months nor less than 6 months from
the date of the first publication of notice;
2. Before the order of distribution, for good
cause shown and within such term as
equitable, the court may allow the filing of the
claim for a period of not more than 1 month
from the issuance of the order allowing such
filing.
3. The creditor may file his claim as
counterclaim in his answer in an action
brought by the executor or administrator
against him.
Claims which survive death of accused
Claim for civil liability survives notwithstanding
death of accused if the same may also be based on
a source of obligation other than delict (contract,
law, quasi-contract, quasi-delict)
Separate civil action may be enforced either
against:
1. Estate of accused (contract)
2. Executor/ administrator (law, quasi-
contract, quasi-delict)
Hilado vs. CA
Civil actions for tort or quasi-delict do not fall
within the class of claims to be filed under the
notice to creditors required under Rule 86. These
actions, being civil, survive the death of the
decedent and may be commenced against the
administrator pursuant to Section 1, Rule 87.
Execution of final judgment not proper
remedy but filing of claim
Domingo v. Garlitos
While the judgment in a civil case has become
final and executory, execution is not the proper
remedy to enforce payment thereof. The ordinary
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
procedure by which to settle claims or
indebtedness against the estate of a deceased
person is for the claimant to present a claim
before the probate court so that said court may
order the administrator to pay the amount
thereof. During the pendency of the proceedings
all the estate is in custodia legis and the proper
procedure is not to allow the sheriff, in case of a
court judgment, to seize the properties but to ask
the court for an order to require the
administrator to pay the amount due from the
estate and required to be paid.
Procedure for filing of claims (Sec. 9)
1. A claim may be filed by delivering the same
with the necessary vouchers to the clerk of
court and by serving a copy thereof on the
executor or administrator.
2. When the claim is due, it must be supported
by affidavit stating the amount justly due, that
no payments have been made thereon which
are not credited, and that there are no offsets
to the same, to the knowledge of the affiant.
3. If the claim is not due, or is contingent, when
filed, it must also be supported by affidavit
stating the particulars thereof.
4. When the affidavit is made by a person other
than the claimant, he must set forth therein
the reason why it is not made by the claimant.
Claim of executor or administrator against the
estate (sec. 8)
If the executor or administrator has a claim
against the estate he represents, he shall give
notice thereof, in writing, to the court, and the
court shall appoint a special administrator,
who shall, in the adjustment of such claim, have
the same power and be subject to the same
liability as the general administrator or
executor in the settlement of other claims. The
court may order the executor or administrator to
pay to the special administrator necessary funds
to defend such claim.
Solidary Obligation of Decedent (Sec. 6)
Where the obligation of the decedent is solidary
with another debtor, the claim shall be filed
against the decedent as if he were the only debtor,
without prejudice to the right of the estate to
recover contribution form the other debtor. In a
joint obligation of the decedent, the claim shall be
confined to the portion belonging to him.
Mortgage debt due from estate (sec. 7)
The 3 options available to the mortgagee-creditor
are the following:
1. Abandon the mortgage and claim the entire
debt against the estate in an ordinary claim;
148
2. Foreclose judicially and prove the deficiency,
if any, in a contingent claim; or
3. Rely on the mortgage and foreclose
extrajudicially without the right of claiming
any deficiency.
NOTE: These remedies are distinct, independent
and mutually exclusive from each other; thus, the
election of one effectively bars the exercise of the
others.
5. Payment of the debts of the estate (Rule
88)
Debts paid in full if estate sufficient (Sec. 1)
If, after hearing all the money claims against the
estate, and after ascertaining the amount of such
claims, it appears that there are sufficient assets
to pay debts, the executor or administrator shall
pay the same within the time limited for that
purpose.
If estate is sufficient
GR: The payment of the debts of the estate must
be taken from: (by order of preference)
1. the portion or property designated in the will;
2. the personal property, and
3. the real property.
If there is still a deficiency, it shall be met by
contributions by devisees, legatees, or heirs who
have been in possession of portions of the estate
BEFORE debts and expenses have been settled
and paid. (Secs. 1-3, 6)
XPNs: The following are the instances when
realty can be charged first:
1. When the personal property is not sufficient.
(Sec. 3, Rule 88)
2. Where the sale of personal personality would
be detrimental to the participants (everyone)
of the estate. (Sec. 3, Rule 88)
3. When sale of personal property may injure
the business or interests of those interested
in the estate. (Sec. 2, Rule 89)
4. When the testator has not made sufficient
provision for payment of such
debts/expenses/legacies. (Sec. 2, Rule 89)
5. When the decedent was, in his lifetime, under
contract, binding in law, to deed real property
to the beneficiary. (Sec. 8, Rule 89)
6. When the decedent during his lifetime held
real property in trust for another person.
(Sec. 9, Rule 89)
Requisites for Exceptions to Ensue:
1. Application by executor/administrator
2. Written notice to persons interested
3. Hearing
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
If estate is insolvent
If the assets which can be appropriated for the
payment of debts are not sufficient for that
purpose, the executor or administrator shall pay
the debts against the estate, observing the
provisions of Articles 1059 and 2239 to 2251 of
the Civil Code.
TIME FOR PAYING DEBTS (Sec. 15 &16)
1. Executor/administrator allowed to pay debts
(and legacies) for a period not more than 1
year.
2. Extendible (on application of executor/
administrator and after notice and hearing) –
not exceeding 6 months for a single
extension.
3. Whole period allowed to the original
executor/administrator shall not exceed 2
years.
4. Successor of dead executor/administrator
may have time extended on notice not
exceeding 6 months at a time and not
exceeding 6 months beyond the time allowed
to the original executor/administrator.
Payment of contingent claims (Secs. 4 & 5)
Contingent claim is a claim that is subject to the
happening of a future uncertain event.
If the court is satisfied that a contingent claim
duly filed is valid, it may order the executor or
administrator to retain in his hands sufficient
estate to pay such contingent claim when the
same becomes absolute, or, if the estate is
insolvent, sufficient to pay a portion equal to the
dividend of the other creditors.
Sheker vs. Sheker
Example: The RTC admitted to probate the
holographic will of Alice O. Sheker and thereafter
issued an order for all the creditors to file their
respective claims against the estate. In
compliance therewith, petitioner filed on October
7, 2002 a contingent claim for agent's commission
due him amounting to approximately
₱206,250.00 in the event of the sale of certain
parcels of land belonging to the estate, and the
amount of ₱275,000.00, as reimbursement for
expenses incurred and/or to be incurred by
petitioner in the course of negotiating the sale of
said realties.
Requisites for the estate to be retained to meet
contingent claims:
1. Contingent claim is duly filed within the 2
year period allowed for the creditors to
present claims;
2. Court is satisfied that the claim is valid;
3. The claim has become absolute.
149
NOTE: If the claim is not presented within said 2
years, the assets retained in the hands of the
executor or administrator, not exhausted in the
payment of claims, shall be distributed by the
order of the court to the persons entitled to the
same; but the assets so distributed may still be
applied to the payment of the claim when
established, and the creditor may maintain an
action against the distributees to recover the
debt, and such distributees and their estates shall
be liable for the debt in proportion to the estate
they have respectively received from the property
of the deceased.
6. Sales, mortgages, and other
encumberance of property of decedent
(Rule 89)
• The court may allow only the sale of personal
property for the purposes in section 1 and not
encumbrance thereof.
• With respect to real property the court may
permit the same to be sold, mortgaged or
otherwise encumbered under sections 2, 4, 5,
6.
o Under both sections 4 and 6, if it will not
be for the convenience of or beneficial to
the heirs and not for payment of debts,
administration expenses and legacies,
real property can only be allowed to be
sold and not encumbered.
• As a rule, unless the testator had made
provisions to the contrary in his will, the
personal property of the estate must first be
sold for the payment of debts, expenses of
administration or legacies. If the same is still
insufficient, the real property may be
proceeded against. Nevertheless, personalty
may always be sold at any time if it is
necessary for the preservation of its value.
• The sale or encumbrance of real property
may be allowed by the court if the petition
therefore avers:
a. that the personal estate is not sufficient
to pay the debts, expenses of
administration and legacies or that the
sale of such personalty may injure the
business or the interests of persons
interested in the estate;
b. that the testator has not otherwise made
sufficient provisions for the payment of
such debts, expenses of administration
and legacies; and
c. that such sale or encumbrance would be
beneficial to the parties interested in the
estate.
o The averment as to the value of the
personal estate is a requisite in the
petition for sale of real property, without
such averment court has no jurisdiction
to authorize sale of realty. Sale of such is
null and void.
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
• If the administrator or executor sells
property of estate without the requisite
authority of the court, such sale is null and
void. The same rule would apply to
encumbrances of real property without
authority of the court.
• Also such application for authority to sell or
encumber property of the estate must be with
notice to the heirs, devisees and legatees.
Otherwise, the sale is void. Such notice is
presumed to have been given absent proof to
the contrary and order of the court granting
such authority cannot be assailed in a
collateral proceeding.
7. Distribution and partition (Rule 90)
GR: Distribution of the residue to persons entitled
thereto shall only be made after notice and
hearing, and after payment of: (DEFAI)
• debts
• expenses of administration
• funeral charges
• allowance to widow
• inheritance tax
XPN: Distribution before payment of obligations
shall be allowed provided distributees give a
BOND, in a sum to be fixed by the court,
conditioned for the payment of said obligations
within such time as the court directs.
Before there could be a distribution of the estate,
the following 2 stages must be followed:
1. Liquidation of estate
• Determination of all assets of the estate
and payment of all debts and expenses
2. Declaration of heirs
• To determine to whom residue of the
estate should be distributed. Separate
action for declaration of heirs not proper.
• A separate action for the declaration of
heirs is not proper.
Heirs of Doronio v. Heirs of Doronio
The net estate of the decedent must be
ascertained, by deducting all payable obligations
and charges from the value of the property owned
by the deceased at the time of his death; then, all
donations subject to collation would be added to
it. With the partible estate thus determined, the
legitime of the compulsory heir or heirs can be
established; and only then can it be ascertained
whether or not a donation had prejudiced the
legitimes.
Project of partition
Project of partition is a document prepared by the
executor or administrator setting forth the
manner in which the estate of the deceased is to
be distributed among the heirs.
150
If the estate is a testate estate, the project of
partition must conform to the terms of the will; if
intestate, the project of partition must be in
accordance with the provisions of the Civil Code.
When probate court loses jurisdiction
Timbol vs. Cano
The probate court loses jurisdiction of an estate
under administration only after the payment of all
the debts and the remaining estate delivered to
the heirs entitled to receive the same. The finality
of the approval of the project of partition by itself
alone does not terminate the probate proceeding.
Mari vs. Bonilla
As long as the order of the distribution of the
estate has not been complied with, the probate
proceedings cannot be deemed closed and
terminated; because a judicial partition is not
final and conclusive and does not prevent the heir
from bringing an action to obtain his share,
provided the prescriptive period therefor has not
elapsed.
The RTC, acting as a special commercial court,
has no jurisdiction to settle, partition, and
distribute the estate of a deceased.
Reyes vs. RTC Makati
A probate court has the power to enforce an
accounting as a necessary means to its authority
to determine the properties included in the
inventory of the estate to be administered,
divided up, and distributed. Beyond this, the
determination of title or ownership over the
subject shares (whether belonging to Anastacia or
Oscar) may be conclusively settled by the probate
court as a question of collation or advancement.
Once an action for the settlement of an estate
is filed with the court, the properties included
therein are under the control of the intestate
court.
Silverio, Jr. vs. CA
Not even the administrator may take possession
of any property that is part of the estate without
the prior authority of the Court.
Remedy of heir entitled to residue but not
given his share
The better practice for the heir who has not
received his share, is to demand his share
through:
1. a proper motion in the same probate or
administration proceedings, or
2. Motion to reopen the probate or
administrative proceedings if it had already
been closed.
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
Guillas vs. Judge of CFI of Pampanga
And not through an independent action, which
would be tried by another court or Judge which
may thus reverse a decision or order of the
probate on intestate court already final and
executed and re-shuffle properties long ago
distributed and disposed of.
Vda de Lopez v. Lopez compared to
Divinagracia v. Rovira
Both involved the issue of the reglementary
period within which non-parties to the partition,
heir, devisee or any person interested in the
estate, can reopen the case.
Conclusion: If the proceeding is already closed, a
motion to reopen may be filed by a non-party
deprived of his lawful participation, as long as it is
within 30 days (now 15 days) or before order
closing the proceedings becomes final.
Guillas vs. Judge of CFI of Pampanga compared
to Heirs of Jesus Fran vs. Salas
Both involved PARTIES who have not received
their shares.
Conclusion: The parties to partition agreement
who have not received their shares can file a
motion for execution within 5 YEARS. But if other
grounds such as forgery of will are raised, final
judgment cannot be attacked except through a
separate action. The validity of a final judgment
can be assailed through a petition for relief under
Rule 38, annulment of judgment under Rule 47,
and petition for certiorari under Rule 65,
assuming the judgment is void for want of
jurisdiction.
Remedy of preterited heir
Solivio vs. CA
The intestate proceedings, although closed and
terminated, can still be opened within the
prescriptive period of 10 years upon petition by
the preterited heir.
Instances when probate court may issue writ of
execution:
1. To satisfy the contributive shares of devisees,
legatees and heirs in possession of the
decedent‘s assets;
2. To enforce payment of expenses of partition;
and
3. To satisfy the costs when a person is cited for
examination in probate proceedings.
151
B. ESCHEAT (RULE 91)
Escheat is a proceeding whereby the real and
personal property of a deceased person in the
Philippines, without leaving any will or legal
heirs, become the property of the state upon his
death.
Requisites for filing of petition
a) That a person died intestate;
b) That he left no heirs or person by law
entitled to the same; and
c) That the deceased left properties.
Parties in Escheat Proceedings
An escheat proceeding is initiated by the
government through the Solicitor General.
Tan vs. City of Davao
All interested parties, especially the actual
occupants and adjacent lot owners, shall be
personally notified of the proceedings and given
opportunity to present their valid claims;
otherwise, it will be reverted to the state.
Where to file
Regional Trial Court of the province where the
deceased last resided or in which he had estate, if
he is a non-resident.
Order for hearing
• Date of the hearing shall be not more than
six (6) months after the entry of the order.
• Publication of the order before the hearing
shall be made at least once a week for six (6)
successive weeks in some newspaper of
general circulation published in the province
Divino v. Hilario
NOTE: Publication of the notice of hearing is
a jurisdictional requisite, non-compliance
with which affects the validity of the
proceeding.
Escheat of unclaimed balances
Unclaimed balances which include credits or
deposits of money, bullion, security or other
evidence of indebtedness of any kind, and interest
thereon with banks in favor of any person
unheard from for a period of 10 years of more,
together with the interest and proceeds thereof
shall be deposited with the Insular Government of
the Philippines as the Philippine Legislature may
direct (Unclaimed Balances Act, Sec. 1)
Action to recover unclaimed balances shall be
commenced by the Solicitor General in an action
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
for escheat in the name of the People of the
Philippines in the Regional Trial Court of the
province where the bank is located, in which shall
be joined as parties the bank and such creditors
or depositors. All or any member of such creditors
or depositors or banks, may be included in one
action.
Remedy of respondent against escheat
petition
1. Motion to dismiss for failure to state a cause
of action. where petition for escheat does not
state facts which entitle petitioner to the
remedy prayed for.
2. Other grounds for dismissal under the rules
Filing of claim to estate (sec. 4)
If a devisee, legatee, heir, widow, widower or
other person entitled to such estate appears and
files a claim thereto with the court within 5 years
from the date of such judgment, such person shall
have possession of and title to the same, or if sold,
the municipality or city shall be accountable to
him for the proceeds, after deducting reasonable
charges for the care of the estate; but a claim not
made within said time shall be forever barred.
C. GUARDIANSHIP
1. Venue (Rule 92)
Sec. 1. Where to institute proceedings. -
Guardianship of the person or estate of a minor
or incompetent may be instituted in the Court of
First Instance of the province, or in the justice of
the peace court of the municipality, or in the
municipal court of the chartered city where the
minor or incompetent person resides, and if he
resides in a foreign country, in the Court of First
Instance of the province wherein his property or
part thereof is situated; provided, however, that
where the value of the property of such minor or
incompetent exceeds the jurisdiction of the
justice of the peace or municipal court, the
proceedings shall be instituted in the Court of
First Instance.
In the City of Manila, the proceedings shall be
instituted in the Juvenile and Domestic
Relations Court.
Guardianship of minors as distinguished from
“incompetents” other than minority is now
governed by the Rule on Guardianship of Minors
(A.M. No. 003-03-05-SC).
Sections 1 and 27 of the RGM make it clear that it
shall apply only to petitions for guardianship over
the person, property or both, of a minor. Petitions
152
for guardianship of incompetents who are not
minors shall continue to be governed by Rules 92-
97 and heard and tried by regular Regional Trial
Courts.
• Minors — Family Court of province or city
where minor resides or his property situated.
• Incompetents — Regional Trial Court of
province or city where incompetent resides
or his property situated.
Incompetent
1. persons suffering under the penalty of civil
interdiction
2. hospitalized lepers
3. prodigals
4. deaf and dumb who are unable to read and
write
5. those of unsound mind, even though they
have lucid intervals
6. persons not being of unsound mind, but by
reason of age, disease, weak mind, and other
similar causes, cannot, without outside aid,
take care of themselves and manage their
property.
2. Appointment of guardians (Rule 93)
Who may petition for appointment of
guardian of incompetent (Sec. 1, Rule 93)
Relative, friend, or other person on behalf of
incompetent who has no parent or lawful
guardian, for the appointment of a general
guardian for the person or estate or both of such
incompetent.
Who may petition for appointment of
guardian of minor (Sec. 2, RGM)
1. Relative or other person on behalf of the
minor
2. Minor himself if 14 years of age or over for the
appointment of a general guardian over the
person or property, or both, of such minor.
The petition may also be filed by the Secretary of
Social Welfare and Development and Secretary of
Health in the case of an insane minor person who
needs to be hospitalized.
Notice of application and hearing (Sec. 3)
Notice of hearing of the petition shall be served
on:
1. Persons mentioned in the petition residing in
the Philippines;
2. Incompetent himself
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
Notice is jurisdictional
Nery vs. Lorenzo
Without such notice, the court acquired no
jurisdiction to appoint a guardian.
NOTE: No publication required.
3. General powers and duties of guardians
(Rule 96)
1. To have care and custody over the person of
his ward, and/or the management of his
estate (Sec. 1);
2. To pay the just debts of his ward out of the
latter‘s estate (Sec. 2);
3. To bring or defend suits in behalf of the ward,
and, with the approval of the court,
compound for debts due the ward and give
discharges to the debtor (Sec. 3);
4. To manage the estate frugally and without
waste, and apply the income and profits to the
comfortable and suitable maintenance of the
ward and his family (Sec. 4);
5. To sell or encumber the real estate of the
ward upon being authorized to do so (Sec. 4);
6. To join in an assent to a partition of real or
personal estate held by the ward jointly or in
common with others (Sec. 5).
4. Termination of guardianship (Rule 97)
Petition that competency of ward be adjudged
(Sec. 1)
A person who has been declared incompetent for
any reason, or his guardian, relative, or friend,
may petition the court to have his present
competency judicially determined.
On the trial, the guardian or relatives of the ward,
and, at the discretion of the court, any other
person, may contest the right to the relief
demanded, and witnesses may be called and
examined by the parties or by the court on its own
motion.
If it be found that the person is no longer
incompetent, his competency shall be adjudged
and the guardianship shall cease.
Grounds for removal of guardian (Sec. 2)
1. When a guardian becomes insane or
otherwise incapable of discharging his trust
or unsuitable therefor;
2. He has wasted or mismanaged the estate;
3. He failed to render an account or make a
return for thirty (30) days after it is due.
153
When guardian allowed to resign (Sec. 2)
A guardian may resign when it appears proper to
allow the same; and upon his resignation or
removal the court may appoint another in his
place.
D. CHANGE OF NAME (RULE 103)
• It is proceeding in rem and as such, strict
compliance with jurisdictional requirements,
particularly on publication, is essential in
order to vest the court with jurisdiction
therefor. For this purpose, the only name that
may be changed is the true or official name as
recorded in the civil register.
• A name given to a person in the church
records, or elsewhere or by which he is
known in the community — when it variance
with that entered in the civil register — is an
official and cannot be recognized as his real
name.
• Failure to include the true name of the party
whose name is sought to be changed, in the
title of the petition and of the notices
published in connection therewith precludes
the court from obtaining jurisdiction to
entertain the same.
• Failure to include the name sought to be
adopted in the title of the petition and
consequently in the notices published in the
newspapers is a substantial jurisdictional
infirmity.
• Ultimately, the petitioner must include both
his true name and the name prayed for in his
petition, otherwise, the court does not
acquire jurisdiction over the petition.
• In granting or denying petitions for change of
name, the question of proper and reasonable
cause is left to the sound discretion of the
court.
• Courts are precluded from granting a petition
for change of name when such changes would
affect paternity and filiation.
• A person's name cannot be changed on the
ground of sex reassignment.
• Where the person is biologically or naturally
intersex, the determining factor in his gender
classification would be what the individual,
having reached the age of majority, with good
reason, thinks of his or her sex. In this case,
the change of name is allowed.
• A mere change of name would not cause one's
existing family relations, nor create new
family rights and duties where none exists
before. Neither would it affect a person’s legal
capacity, civil status or citizenship.
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
E. CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY (RULE
108)
• The obvious effect of RA 9048 is merely to
make possible the administrative correction
of clerical or typographical errors or change
of first name or nickname in entries in the
civil register, leaving to Rule 108 the
correction of substantial changes in the civil
registry, in appropriate adversarial
proceedings.
• RA 9048 now embodies the summary
procedure, while Rule 108 is for the
appropriate adversary proceeding.
• Substantial corrections or cancellations of
entries in civil registry records affecting the
status or legitimacy of a person may be
effected through the institution of a petition
under Rule 108 of the Revised Rules of Court,
with the proper Regional Trial Court.
Kilosbayan Foundation vs. Ermita
Substantial corrections to the nationality or
citizenship of persons recorded in the civil
registry should be effected through a petition
filed in court under Rule 108 of the Rules of
Court.
F. CLERICAL ERROR LAW (RA 9048)
Silverio vs Republic
RA 9048 now governs the change of first name. It
vests the power and authority to entertain
petitions for change of first name to the city or
municipal civil registrar or consul general
concerned. Under the law, therefore, jurisdiction
over applications for change of first name is now
primarily lodged with the aforementioned
administrative officers. The intent and effect of
the law is to exclude the change of first name from
the coverage of Rules 103 (Change of Name) and
108 (Cancellation or Correction of Entries in the
Civil Registry) of the Rules of Court, until and
unless an administrative petition for change of
name is first filed and subsequently denied. It
likewise lays down the corresponding venue,
form and procedure. In sum, the remedy and the
proceedings regulating change of first name are
primarily administrative in nature, not judicial.
What is left for the scope of operation of the rules
are substantial changes and corrections in entries
of the civil register. Ultimately, the remedy and
the proceedings regulating change of first name
are primarily administrative in nature, not
judicial.
*See separate table for distinction between Rule
103, RA 9048, Rule 108
154
G. WRIT OF HABEAS CORPUS
1. Rule 102
• Writ of Habeas Corpus means “to produce the
body”. It is a remedy available in case of illegal
detention or confinement in which a person
is deprived of his liberty, and in case the
rightful custody of a person is withheld from
the person entitled thereto. The main
objective of the habeas corpus is to determine
whether the confinement or detention is
illegal because if it is not, then the writ cannot
be issued. Its purpose is to produce the body
on the time and place determined by the
court.
• The writ of habeas corpus shall extend to all
cases of illegal confinement or detention by
which any person is deprived of his liberty, or
by which the rightful custody of any person is
withheld from the person entitled thereto.
• A petition for the issuance of a writ of habeas
corpus is a special proceeding governed by
Rule 102 of the Revised Rules of Court. The
objective of the writ is to determine whether
the confinement or detention is valid or
lawful. If it is, the writ cannot be issued. What
is to be inquired into is the legality of his
detention as of, at the earliest, the filing of the
application for the writ of habeas corpus, for
even if the detention is at its inception illegal,
it may, by reason of some supervening events,
such as the instances mentioned in Sec. 4 of
Rule 102, be no longer illegal at the time of the
filing of the application.
• Habeas corpus is a summary remedy. It is
analogous to a proceeding in rem when
instituted for the sole purpose of having the
person of restraint presented before the
judge in order that the cause of his detention
may be inquired into and his statements
final.The writ of habeas corpus does not act
upon the prisoner who seeks relief, but upon
the person who holds him in what is alleged
to be the unlawful authority. Hence, the only
parties before the court are the petitioner
(prisoner) and the person holding the
petitioner in custody, and the only question to
be resolved is whether the custodian has
authority to deprive the petitioner of his
liberty (Caballes vs. CA)
• Habeas corpus may not be used as a means of
obtaining evidence on the whereabouts of a
person, or as a means of finding out who has
specifically abducted or caused the
disappearance of a certain person.
• The writs of habeas corpus and certiorari
may be ancillary to each other where
necessary to give effect to the supervisory
powers of the higher courts. A writ of habeas
corpus reaches the body and the
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
jurisdictional matters, but not the record. A
writ of certiorari reaches the record but not
the body. Hence, a writ of habeas corpus may
be used with the writ of certiorari for the
purpose of review.
• The general rule is that the release, whether
permanent or temporary, of a detained
person renders the petition for habeas corpus
moot and academic, unless there are
restraints attached to his release which
precludes freedom of action, in which case
the Court can still inquire into the nature of
his involuntary restraint.
• This writ may issue even if another remedy
which is less effective may be availed of –
failure by accused to perfect his appeal before
the CA does not preclude recourse to the writ.
The writ may be granted upon a judgment
already final.
Order to produce body not a grant of the
remedy of habeas corpus
In the Matter of the Petition for Habeas Corpus
of Alejano vs. Cabuay
In a habeas corpus petition, the order to present
an individual before the court is a preliminary
step in the hearing of the petition. The respondent
must produce the person and explain the cause of
his detention. However, this order is not a ruling
on the propriety of the remedy or on the
substantive matters covered by the remedy. Thus,
the Court’s order to the Court of Appeals to
conduct a factual hearing was not an affirmation
of the propriety of the remedy of habeas corpus.
When not applicable
1. For asserting or vindicating denial of right to
bail;
2. For correcting errors in appreciation of facts
or appreciation of law – where the trial court
had no jurisdiction over the cause, over the
person of the accused, and to impose the
penalty provided for by law, the mistake
committed by the trial court, in the
appreciation of the facts and/or in the
appreciation of the law cannot be corrected
by habeas corpus;
3. Once a person detained is duly charged in
court, he may no longer file a petition for
habeas corpus. His remedy would be to quash
the information or warrant.
When writ disallowed/discharged
If it appears that the person alleged to be
restrained of his liberty is in the custody of an
officer under process issued by a court or judge or
by virtue of a judgment or order of a court of
record, and that the court or judge had
jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be
155
allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged
by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in
this rule be held to authorize the discharge of a
person charged with or convicted of an offense in
the Philippines, or of a person suffering
imprisonment under lawful judgment.
Writ of habeas corpus cannot be issued once
the person is charged with a criminal offense
In the Matter of the Petition for Habeas Corpus
of Kunting
The remedy of habeas corpus has one objective:
to inquire into the cause of detention of a person,
and if found illegal, the court orders the release of
the detainee. If, however, the detention is proven
lawful, then the habeas corpus proceedings
terminate.
MANGILA V. PANGILINAN
As a general rule, a writ of habeas corpus will
not be granted where relief may be had or could
have been procured by resort to another
general remedy. As pointed out in Luna vs.
Plaza, if petitioner is detained by virtue of a
warrant of arrest, which is allegedly invalid, the
remedy available to her is not a petition for
habeas corpus but a petition to quash the
warrant of arrest or a petition for a
reinvestigation of the case by the Municipal
Judge or by the Provincial Fiscal.
Habeas corpus is not in the nature of a writ of
error; nor intended as substitute for the trial
court’s function. It cannot take the place of
appeal, certiorari or writ of error. The writ
cannot be used to investigate and consider
questions of error that might be raised relating
to procedure or on the merits. The inquiry in a
habeas corpus proceeding is addressed to the
question of whether the proceedings and the
assailed order are, for any reason, null and void.
The writ is not ordinarily granted where the
law provides for other remedies in the regular
course, and in the absence of exceptional
circumstances. Moreover, habeas corpus
should not be granted in advance of trial. The
orderly course of trial must be pursued and the
usual remedies exhausted before resorting to
the writ where exceptional circumstances are
extant. In another case, it was held that habeas
corpus cannot be issued as a writ of error or as
a means of reviewing errors of law and
irregularities not involving the questions of
jurisdiction occurring during the course of the
trial, subject to the caveat that constitutional
safeguards of human life and liberty must be
preserved, and not destroyed. It has also been
held that where restraint is under legal process,
mere errors and irregularities, which do not
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
render the proceedings void, are not grounds
for relief by habeas corpus because in such
cases, the restraint is not illegal.
Office Of The Solicitor General vs. Judge De
Castro
Once a person detained is duly charged in court,
he may no longer question his detention through
a petition for issuance of a writ of habeas corpus.
His remedy would be to quash the information
and/or the warrant of arrest duly issued. The writ
of habeas corpus should not be allowed after the
party sought to be released had been charged
before any court. The term “court” includes quasi-
judicial bodies or governmental agencies
authorized to order the person’s confinement,
like the Deportation Board of the Bureau of
Immigration.
GR: The release, whether permanent or
temporary, of a detained person renders the
petition for habeas corpus moot and academic.
Habeas corpus as a post-conviction remedy
As a post-conviction remedy, it may be allowed
when, as a consequence of a judicial proceeding,
any of the following exceptional circumstances is
attendant:
1. there has been a deprivation of a
constitutional right resulting in the restraint
of a person;
2. the court had no jurisdiction to impose the
sentence; or
3. the imposed penalty has been excessive, thus
voiding the sentence as to such excess.
In Evangelista vs. Sistoza (2001), the accused filed
a petition for habeas corpus to secure his release
from prison, due to the amendment of PD 1866 by
RA 8249, reducing the penalty for illegal
possession of low powered firearms — from
reclusion temporal in its maximum period to
reclusion perpetua, to prision correccional in its
maximum period. The court granted the petition,
as he has already served 9 years in prison, more
than the maximum term of his imprisonment for
robbery. He need not serve anymore his sentence
of 18 years of reclusion temporal as minimum to
reclusion perpetua as maximum for illegal
possession of firearm, in view of said amendment.
Retroactive effect of favorable law
Where a decision is already final, the appropriate
remedy of the accused to secure release from
prison is petition for habeas corpus.
156
Writ of habeas corpus is different from the
final decision on the petition for the issuance
of the writ
It is the writ that commands the production of the
body of the person allegedly restrained of his or
her liberty. On the other hand, it is in the final
decision where a court determines the legality of
the restraint.
Between the issuance of the writ and the final
decision on the petition for its issuance, it is the
issuance of the writ that is essential. The issuance
of the writ sets in motion the speedy judicial
inquiry on the legality of any deprivation of
liberty. Courts shall liberally issue writs of habeas
corpus even if the petition for its issuance "on [its]
face [is] devoid of merit[.]" Although the privilege
of the writ of habeas corpus may be suspended in
cases of invasion, rebellion, or when the public
safety requires it, the writ itself may not be
suspended.
2. Writ of habeas corpus in relation of
custody of minors (AM No. 03-04-04-SC)
A verified petition for the rightful custody of a
minor may be filed by any person claiming such
right. The petition shall be filed with the Family
Court of the province or city where the petitioner
resides or where the minor may be found.
After trial, the court shall render judgment
awarding custody of the minor to the proper
party considering the best interests of the minor.
However, if it appears that both parties are unfit
to have the care and custody of the minor, the
court may designate either the paternal or
maternal grandparent of the minor or his oldest
brother or sister, or any reputable person to take
charge of such minor, or commit him to any
suitable home for children.
The court may issue any order that is just and
reasonable permitting the parent who is deprived
of the care and custody of the minor to visit or
have temporary custody.
H. WRIT OF AMPARO (AM NO. 07-9-12-SC)
• Writ of Amparo is a remedy available to a
person whose right to life, liberty, and
security is violated or threatened by an
unlawful act or omission of a public official or
employee, or a private individual or entity.
This covers extralegal killings and enforced
disappearances. The indispensable requisite
for the issuance of the writ, which must be
proven by substantial evidence, is the
government’s participation. If there is no
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
government participation, the writ cannot be
issued.
• The privilege of the writ of amparo is a
remedy available to victims of extra-judicial
killings and enforced disappearances or
threats of similar nature, regardless of
whether the perpetrator of the unlawful act
or omission is a public official or employee or
a private individual.
• The privilege of the Writ of Amparo should be
distinguished from the actual order called the
Writ of Amparo. The privilege includes
availment of the entire procedure outlined in
A.M. No. 07-9-12-SC, the Rule on the Writ of
Amparo.
• It is not a writ to protect concerns that are
purely property or commercial. Neither is it a
writ that we shall issue on amorphous and
uncertain grounds.
• The petitioner in an amparo case has the
burden of proving by substantial evidence the
indispensable element of government
participation. A writ of amparo is not a proper
remedy if there is no government
participation.
• Writ of amparo cannot be issued in cases
where the alleged threat to life, liberty and
security has ceased and is no longer
imminent or continuing.
Boac vs. Cadapan
An amparo proceeding does not determine guilt
nor pinpoint criminal culpability for the
disappearance [threats thereof or extrajudicial
killings]; it determines responsibility, or at least
accountability, for the enforced disappearance
for purposes of imposing the appropriate
remedies to address the disappearance.
Differences between amparo and search
warrant
AMPARO SEARCH WARRANT
Under Art. III, Sec. 2, it
The amparo is a protection of the
production order may people from the
be limited to the unreasonable
production of intrusion of the
documents or things government, not a
under Sec. 1, Rule 27 protection of the
of the Rules of Civil government from the
Procedure demand of the people
as such respondents
I. WRIT OF HABEAS DATA (AM NO. 08-1-16-
SC)
• It seeks to protect a person’s right to control
information regarding oneself, particularly in
instances in which such information is being
157
collected through unlawful means in order to
achieve unlawful ends.
• In order for the privilege of the writ to be
granted, there must exist a nexus between the
right to privacy on the one hand, and the right
to life, liberty or security on the other.
• Section 6 of the Rule on the Writ of Habeas
Data requires material allegations of ultimate
facts in a petition for the issuance of a writ of
habeas data.
• An indispensable requirement before the
privilege of the writ may be extended is the
showing, at least by substantial evidence, of
an actual or threatened violation of the right
to privacy in life, liberty or security of the
victim.
• It is not a writ to protect concerns that are
purely property or commercial. Neither is it a
writ that we shall issue on amorphous and
uncertain grounds
Instances when petition be heard in chambers:
A hearing in chambers may be conducted where
the respondent invokes the defense that the
release of the data or information in question
shall compromise national security or state
secrets, or when the data or information cannot
be divulged to the public due to its nature or
privileged character.
*See separate table for distinction between Writ of
Habeas Corpus, Writ of Amparo, Writ of Habeas
Data
J. RULES OF PROCEDURE ON
ENVIRONMENTAL CASES (AM NO. 09-6-8-SC)
1. Temporary Environmental Protection
Order (TEPO)
Temporary Environmental Protection Order
(TEPO) refers to an order issued by the court
directing or enjoining any person or government
agency to perform or desist from performing an
act in order to protect, preserve or rehabilitate
the environment.
Issuance
If it appears from the verified complaint with a
prayer for the issuance of an Environmental
Protection Order (EPO) that the matter is of
extreme urgency and the applicant will suffer
grave injustice and irreparable injury, the
executive judge of the multiple sala court before
raffle or the presiding judge of a single-sala court
as the case may be, may issue ex parte a TEPO
effective for only seventy-two (72) hours from
date of the receipt of the TEPO by the party or
person enjoined. Within said period, the court
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
where the case is assigned, shall conduct a
summary hearing to determine whether the TEPO
may be extended until the termination of the case.
The court where the case is assigned, shall
periodically monitor the existence of acts that are
the subject matter of the TEPO even if issued by
the executive judge, and may lift the same at any
time as circumstances may warrant.
The applicant shall be exempted from the posting
of a bond for the issuance of a TEPO.
Dissolution
The grounds for motion to dissolve a TEPO shall
be supported by affidavits of the party or person
enjoined which the applicant may oppose, also by
affidavits.
The TEPO may be dissolved if it appears after
hearing that its issuance or continuance would
cause irreparable damage to the party or person
enjoined while the applicant may be fully
compensated for such damages as he may suffer
and subject to the posting of a sufficient bond by
the party or person enjoined.
2. Writ of continuing mandamus
Continuing mandamus is a writ issued by a court
in an environmental case directing any agency or
instrumentality of the government or officer
thereof to perform an act or series of acts decreed
by final judgment which shall remain effective
until judgment is fully satisfied.
Grounds for continuing mandamus:
1. When any agency or instrumentality of the
government or officer thereof unlawfully
neglects the performance of an act which the
law specifically enjoins as a duty resulting
from an office, trust or station in connection
with the enforcement or violation of an
environmental law rule or regulation or a
right therein;
2. When any agency or instrumentality of the
government or officer thereof unlawfully
excludes another from the use or enjoyment
of such right.
Requisites continuing mandamus:
1. There must be a clear legal right or duty;
2. The act to be performed must be practical;
3. Respondent must be exercising a ministerial
duty;
4. The duty or act to be performed must be in
connection with the enforcement or violation
of an environmental law, rule or regulation or
a right; and
158
5. There is no other plain, speedy, and adequate
remedy in the ordinary course of law.
The petition shall be filed with the Regional Trial
Court exercising jurisdiction over the territory
where the actionable neglect or omission
occurred or with the Court of Appeals or the
Supreme Court. The petitioner shall be exempt
from the payment of docket fees.
If warranted, the court shall grant the privilege of
the writ of continuing mandamus requiring
respondent to perform an act or series of acts
until the judgment is fully satisfied and to grant
such other reliefs as may be warranted resulting
from the wrongful or illegal acts of the
respondent. Upon full satisfaction of the
judgment, a final return of the writ shall be made
to the court by the respondent. If the court finds
that the judgment has been fully implemented,
the satisfaction of judgment shall be entered in
the court docket.
The issuance of a TEPO is made available as an
auxiliary remedy prior to the issuance of the writ
itself. As a special civil action, the WCM may be
availed of to compel the performance of an act
specifically enjoined by law. Its availability as a
special civil action likewise complements its role
as a final relief in environmental civil cases and in
the WOK, where continuing mandamus may
likewise be issued should the facts merit such
relief.
3. Writ of kalikasan
The writ is a extraordinary remedy available to a
natural or juridical person, entity authorized by
law, people’s organization, non-governmental
organization, or any public interest group
accredited by or registered with any government
agency, on behalf of persons whose constitutional
right to a balanced and healthful ecology is
violated, or threatened with violation by an
unlawful act or omission of a public official or
employee, or private individual or entity,
involving environmental damage of such
magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or
provinces.
Those who may file for this remedy must
represent the inhabitants prejudiced by the
environmental damage subject of the writ to be
filed with the SC or CA. The applicant is exempted
from payment of docket fees.
Where to file
The petition shall be filed with the Supreme Court
or with any of the stations of the Court of Appeals.
Remedial Law Reviewer by Sky Makayan
 REMEDIAL LAW (PART 1: FIRST LEVEL COURTS)
Issuance of the Writ
Within 3 days from the date of filing of the
petition, if the petition is sufficient in form and
substance, the court shall give an order issuing
the writ and requiring the respondent to file a
verified return as provided in Section 8 of this
Rule.
The clerk of court shall forthwith issue the writ
under the seal of the court including the issuance
of a cease and desist order and other temporary
reliefs effective until further order.
accounts, letters, photographs, objects or
tangible things, or objects in digitized or
electronic form, which constitute or contain
evidence relevant to the petition or the
return, to produce and permit their
inspection, copying or photographing by or
on behalf of the movant. The production
order shall specify the person or persons
authorized to make the production and the
date, time, place and manner of making the
inspection or production and may prescribe
other conditions to protect the constitutional
rights of all parties.

How the Writ is Served Judgment

The writ shall be served upon the respondent by Within 60 days from the time the petition is
a court officer or any person deputized by the submitted for decision, the court shall render
court, who shall retain a copy on which to make a judgment granting or denying the privilege of the
return of service. writ of kalikasan.

In case the writ cannot be served personally, the
rule on substituted service shall apply.
Discovery measures
A party may file a verified motion for the
following reliefs:
1. Ocular Inspection – The motion must show
that an ocular inspection order is necessary
to establish the magnitude of the violation or
the threat as to prejudice the life, health or
property of inhabitants in two or more cities
or provinces. It shall state in detail the place
or places to be inspected. It shall be
supported by affidavits of witnesses having
personal knowledge of the violation or
threatened violation of environmental law.
Period to appeal from the judgment — Within
15 days from the date of notice of the adverse
judgment or denial of motion for reconsideration,
any party may appeal to the Supreme Court under
Rule 45 of the Rules of Court. The appeal may
raise questions of fact.
Separate actions filed after the filing of a
petition for issuance of writ of kalikasan —
The filing of a petition for the issuance of the writ
of kalikasan shall not preclude the filing of
separate civil, criminal or administrative actions.

After hearing, the court may order any person

in possession or control of a designated land
or other property to permit entry for the
purpose of inspecting or photographing the
property or any relevant object or operation
thereon. The order shall specify the person or
persons authorized to make the inspection
and the date, time, place and manner of
making the inspection and may prescribe
other conditions to protect the constitutional
rights of all parties.

2. Production or inspection of documents or

things – The motion must show that a
production order is necessary to establish the
magnitude of the violation or the threat as to
prejudice the life, health or property of
inhabitants in two or more cities or
provinces.

After hearing, the court may order any person

in possession, custody or control of any
designated documents, papers, books,

159 Remedial Law Reviewer by Sky Makayan