SPECIAL PROCEEDINGS

Special proceedings
• A special proceeding is a remedy by which a party
seeks to establish a status, right, or a particular fact.
(SRP) [Sec. 3, Rule 1]
• In the absence of special provisions, the rules
provided for in ordinary civil actions shall be, as far as
practicable, applicable in special proceedings. [Sec. 2,
Rule 72]
 14 Special proceedings
• Rules of special proceedings are provided for in the following cases:
a) Settlement of estate of deceased persons;
b) Escheat;
c) Guardianship and custody of children;
d) Trustees;
e) Adoption;
f) Rescission and revocation of adoption;
g) Hospitalization of insane persons;
h) Habeas corpus;
i) Change of name;
j) Voluntary dissolution of corporations;
k) Judicial approval of voluntary recognition of minor natural children;
l) Constitution of family home;
m) Declaration of absence and death;
n) Cancellation or correction of entries in the civil registry. [Sec. 1, Rule 72]
 The enumeration is NOT EXCLUSIVE
• The list under Section 1, Rule 72 is not exclusive.
• Any petition which has for its main purpose the
establishment of a status, right or a particular fact may be
included as special proceeding. [Festin, Special
Proceedings, A Foresight to the Bar Exam: Question and
Answer Noted, Bar Questions, Cases and Updated Laws,
2011]
• For instance, a land registration proceeding, petition for
the issuance of a writ of amparo or a writ of habeas data, a
liquidation proceeding, and proceedings under the Special
ADR Rules.
 Other special proceedings
1) Summery Rroceedings under the Family Code;
2) Actions in the Family Court, such as annulment of marriage
[Rayray v. Chae Kung Lee, (1966)];
3) Proceedings under the Chiid & Youth Welfare Code, Child
Abuse Act, and Child Employment Act;
4) Domestic and Inter-Country Adoption;
5) Corporate Rehabilitation under FRIA;
6) Liquidation (Pacific Banking Corp, supra);
7) Writs of Amparo and Kalikasan;
8) Arbitration (Special ADR Rules); and Recognition and
Enforcement of an Arbitral Award
 Can a special proceeding be joined with
ordinary civil actions?
• NO, by express provision of Sec. 5, Rule 2
which requires that the joinder of causes of
action must not involve special civil actions or
actions governed by special rules, (which
includes special proceedings).
 Insolvency proceedings and settlement are
actions in rem
• Insolvency proceedings end settlement of a decedent’s estate are
both proceedings in rem which are binding the whole world. All
persons having interest in the subject matter involved, whether
they were notified or not, are equally bound. Consequently, a
liquidation of similar import or other equivalent general
liquidation must also necessarily be a proceeding in rem so that
all interested persons whether known to the parties or not may
be bound by such proceeding. [Philippine Savings Bank v. Lantin
(1983)]
• Special proceedings, such as the settlement of a decedent's
estate, are actions in rem—they entail a binding effect on the
whole world. [Leonen, Dissenting Opinion; Treyes v. Larlar (2020)]
 Modes of settlement of estate
• The following are the different modes of
settlement of estate:
a) Extrajudicial Settlement of Estate [Sec. 1, Rule 74]
a) Extrajudicial settlement and/or Partition; or
b) Self-adjudication;
b) Summary Settlement of Estate of Small Value [Sec.
2, Rule 74]
c) Judicial Settlement of Estate; and
d) Partition [Rule 69].
 Settlement of estate of deceased persons,
venue and process
• A special proceeding for the settlement of an estate
is filed and intended to settle the entire estate of the
deceased is obvious and elementary.
• It would be absurd for the heirs to intentionally
excluded or leave a parcel of land or a portion
thereof undistributed or undivided because the
proceeding is precisely designed to end the
community of interests in properties held by co-
partners pro indiviso without designation or
segregation of shares. [Vda. De Reyes v. CA (1989)]
 Which court has jurisdiction (MTC/RTC –
300/400k)
• Section 19 (4) of BP 129 provides that the RTC
shall have jurisdiction over all matters of probate,
both testate and intestate, where the gross value
of the estate exceeds Php300,000.00 or, in
probate matters in Metro Manila, where such
gross value exceeds Php400,000.00.
• Otherwise, it shall be with the appropriate MTC.
• It is the gross value of the estate that will be the
principal factor.
 Venue in judicial settlement of estate
• 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. [Sec. 1, Rule 73]
Venue in judicial settlement of estate (cont.)

• The term “resides” under Section 1, Rule 73 should be

viewed or understood in its popular sense, meaning, the
personal, actual or physical habitation of a person, actual
residence or place of abode.
• It signifies physical presence in a place and actual stay
thereat. Venue for ordinary civil actions and that for
special proceedings have one and the same meaning. [Fule
v. CA (1976)]
• It is not the legal residence or domicile as defined by law.
Animus rivertendi is not considered. [San Luis v. San Luis
(2007]
 Exclusionary rule on venue
• The court first taking cognizance of the settlement of
the estate of a decedent, shall exercise jurisdiction to
the exclusion of all other courts. [Sec. 1, Rule 73]
• The Rule on venue does not state that the court with
whom the estate or intestate petition is first
filed acquires exclusive jurisdiction.
• The Rule precisely and deliberately provides that "the
court first taking cognizance of the settlement of the
estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts.“ [Cuenco v. CA (1973)]
Exclusionary rule on venue (cont.)
• Even assuming that there is concurrent venue
among the Regional Trial Courts of the places
where the decedent has residences, the
Regional Trial Court first taking cognizance of
the settlement of the estate of the decedent,
shall exercise jurisdiction to the exclusion of all
other courts (Section 1, Rule 73). [Vda. De
Chua v. CA (1998)]
 Exclusionary rule on venue; exception
• The court which took first cognizance of the settlement of
estate may, upon learning that a petition for probate of the
decedent's last will has been presented in another court
where the decedent obviously had his conjugal domicile and
resided with his surviving widow and their minor children,
and that the allegation of the intestate petition before it
stating that the decedent died intestate may be actually
false, may decline to take cognizance of the petition and hold
the petition before it in abeyance, and instead defer to the
second court which has before it the petition for probate of
the decedent's alleged last will. [Cuenco v. CA (1973)]
Improper venue; subject to waiver
• It is well settled in this jurisdiction that wrong
venue is merely a waiveable procedural defect.
• Any objection to improper venue should be
seasonably made in a motion to dismiss.
[Uriarte v. CFI (1970)]
• Otherwise, the venue of the probate
proceeding can only be questioned on appeal.
[Sec. 1, Rule 73]
 Extent of jurisdiction of probate court
• Well-settled is the rule that a probate court has the jurisdiction to
determine all the properties of the deceased, to determine
whether they should or should not be included in the inventory
or list of properties to be administered.
• The said court is primarily concerned with the administration,
liquidation and distribution of the estate. [Union Bank v.
Santibanez (2005)]
• Its jurisdiction 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 property
included in the inventory is the conjugal or exclusive property of
the deceased spouse. [Aranas v. Mercado (2014)]
 Determination of issue of ownership in
probate: not conclusive, merely provisional
• The probate court is authorized to determine the issue of ownership
of properties for purposes of their inclusion or exclusion from the
inventory to be submitted by the administrator, but its determination
shall only be provisional unless:
a) the interested parties are all heirs of the decedent, or
b) the question is one of collation or advancement, or
c) the parties consent to the assumption of jurisdiction by the probate court and the
rights of third parties are not impaired. [Aranas v. Mercado (2014)]
• The jurisprudence and rule are both to the effect that the probate
court "may" provisionally pass upon the question of exclusion, not
"should". The obvious reason is the probate court's limited jurisdiction
and the principle that questions of title or ownership, which result to
inclusion in or exclusion from the inventory of the property, can only
be settled in a separate action. [Pio Baretto vs. Aa (1984)]
Determination of heir an issue resolvable by
probate court
• “Jurisprudence dictates that the determination of who are the legal heirs
of the deceased must be made in the proper special proceedings in court,
and not in an ordinary suit for recovery of ownership and possession of
property. This must take precedence over the action for recovery of
possession and ownership. The Court has consistently ruled that the trial
court cannot make a declaration of heirship in the civil action for the
reason that such a declaration can only be made in a special proceeding.
• Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a special
proceeding is a remedy by which a party seeks to establish a status, a
right, or a particular fact. It is then decisively clear that the declaration of
heirship can be made only in a special proceeding inasmuch as the
petitioners here are seeking the establishment of a status or right.” [Heirs
of Magdaleno Ypon v. Ponteras Ricaforte (2013)]
 Jurisdiction of probate court to determine whether
property belongs to conjugal partnership or exclusive
ownership of a party
• In the case now before us, the matter in controversy is the question
of ownership of certain of the properties involved — whether they
belong to the conjugal partnership or to the husband exclusively.
This is a matter properly within the jurisdiction of the probate court
which necessarily has to liquidate the conjugal partnership in order
to determine the estate of the decedent which is to be distributed
among his heirs who are all parties to the proceedings.
• Only the probate court can competently rule on whether the
properties are conjugal and form part of the estate. It is only the
probate court that can liquidate the conjugal partnership and
distribute the same to the heirs, after the debts of the estate have
been paid.[Romero v. CA (2012)]
 Probate court has a special and limited
jurisdiction
• The trial court, sitting as a probate court, has limited and
special jurisdiction and cannot hear and dispose of collateral
matters and issues which may be properly threshed out only
in an ordinary civil action. [Vda. De Manalo v. CA (2001)]
• The authority of the Regional Trial Court, sitting, albeit with
limited jurisdiction, as a probate court over the estate of
deceased individual, is not a trifling thing. The court's
jurisdiction, once invoked, and made effective, cannot be
treated with indifference nor should it be ignored with
impunity by the very parties invoking its authority. [Romero
v. CA (2012)]
 Probate court has a special and limited
jurisdiction (cont.)
• General rule: The jurisdiction of the trial court, either as a probate court or an
intestate court, relates only to matters having to do with the probate of the will
and/or settlement of the estate of deceased persons, but does not extend to the
determination of questions of ownership that arise during the proceedings. The
patent rationale for this rule is that such court merely exercises special and
limited jurisdiction. (Aranas v. Mercado, G.R. No.156407, January 12, 2014)
• Exceptions:
a) In a provisional manner to determine whether said property should be included or
excluded in the inventory, without prejudice to final determination of title in a separate
action [Cuizon v. Ramolete (1984)]
b) With consent of all the parties, without prejudice to the rights of third persons [Trinidad
v. CA (1991)]
c) If the question is one of collation or advancement [Coca v. Borromeo, G.R. No. L-27082
(1978)]
d) When the estate consists of only one property [Portugal v. Portugal-Beltran, G.R. No.
155555 (2005)]
 Issues that may be resolved by the probate
court
• It has been held that it is within the jurisdiction of the
probate court to:
1) 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; the legality of disinheritance of an heir by the
testator; and
5) to pass upon the validity of a waiver of hereditary rights.
[Romero v. CA (2012)]
 Powers and duties of probate court
• In probate proceedings, the court:
a) Orders the probate of the will of the decedent (Sec. 3, Rule 77);
b) Grants letters of administration of the party best entitled thereto or to any qualified
applicant (Sec. 5, Rule 79);
c) Supervises and control all acts of administration;
d) Hears and approves claims against the estate of the deceased (Sec. 11, Rule 86);
e) Orders payment of lawful debts (Sec. 11, Rule 88);
f) Authorizes sale, mortgage or any encumbrance of real estate (Sec. 2, Rule 89);
g) Directs the delivery of the estate to those entitled thereto (Sec. 1, Rule 90);
h) Issue warrants and processes necessary to compel the attendance of witnesses or to
carry into effect their orders and judgments, and all other powers granted them by law
(Sec. 3, Rule 73);
i) If a person defies a probate order, it may issue a warrant for the apprehension and
imprisonment of such person until he performs such order or judgment, or is released
(Sec. 3, Rule 73).
 Power of supervision and control of the
probate court
• The court which acquires jurisdiction over the properties of a
deceased person through the filing of the corresponding
proceedings, has supervision and control over the said properties,
and under the said power, it is its inherent duty to see that the
inventory submitted by the administrator appointed by it contains
all the properties, rights and credits which the law requires the
administrator to set out in his inventory. In compliance with this
duty the court has also inherent power to determine what
properties, rights and credits of the deceased should be included in
or excluded from the inventory. [De Leon v. CA (2002)]
• The court acts as trustee and as such, should jealously guard the
estate and see to it that it is wisely and economically administered,
not dissipated. [Timbol v. Cano (1961)]
When probate court loses jurisdiction of estate
under administration
• The probate court loses jurisdiction of an
estate under administration only after the
payment of all the debts, and after the
remaining estate is delivered to the heirs
entitled to receive the same. [Timbol v. Cano
(1961)]
 Summary settlement of estates
• General rule: When a person dies leaving property, the
same should be JUDICIALLY ADMINISTERED and the
competent court should appoint a qualified
administrator, in the order established in Section 6, Rule
78, in case the deceased left no will, or in case he had
left one, should he fail to name an executor therein.
[Pereira v. CA (1989)]
• Exceptions:
1) Extrajudicial settlement (Section 1, Rule 74)
2) Summary settlement of estates of small value (Section 2,
Rule 74)
 Extrajudicial settlement by agreement
between heirs, when allowed
• An exception to the general rule is established in
Section 1 of Rule 74. 
• The heirs, by agreement, may extrajudicially settle the
estate of the decedent if:
a) The decedent left no will;
b) The decedent left no debts, or if any, these debts have
been paid by the heirs at the time the extrajudicial
settlement is entered into; and
c) The heirs are all of age, or the minors are represented by
their judicial or legal representatives duly authorized for
the purpose. [Sec. 1, Rule 74]
Presumption that the decedent left no debts

• 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. [Sec. 1, Rule 74]
 Effect of Exclusion of Heirs: Agreement null
and void
• “No extrajudicial settlement shall be binding upon any
person who has not participated therein or had no notice
thereof.” [Sec. 1, Rule 74]
• Hence, in the execution of the Extra-Judicial 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.
[Neri v. Heirs of Hadji Yusop Uy (2012)]
 Effect of Exclusion of Heirs: Agreement null
and void (cont.)
• Under said provision, without the participation of all persons
involved in the proceedings, the extrajudicial settlement cannot
be binding on said persons.
• The rule contemplates a notice which must be sent out or
issued before the Deed of Settlement and/or Partition is agreed
upon, i.e., a notice calling all interested parties to participate in
the said deed of extrajudicial settlement and partition,
not after, which was when publication was done in the instant
case. Following Rule 74 and the ruling in Beltran vs. Ayson,
since Maria Elena did not participate in the said partition, the
settlement is not binding on her. [Pedrosa v. CA (2001)]
 Two-year prescriptive period
• 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 (2001)]
• This section provides in gist that a person who has been deprived of his
lawful participation in the estate of the decedent, whether as heir or as
creditor, must assert his claim within two years after the extrajudicial or
summary settlement of such estate under Sections 1 and 2 respectively of
the same Rule 74. Thereafter, he will be precluded from doing so as the
right will have prescribed. [Segura v. Segura (1988)]
 Two-year prescriptive period (cont.)
• The provision of Section 4, Rule 74 will also not apply when the deed
of extrajudicial partition is sought to be annulled on the ground of
fraud. 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. [Pedrosa v. CA (2001)]
• The rule covers only valid partitions. The partition in the present case
was invalid because it excluded six of the nine heirs who were entitled
to equal shares in the partitioned property. Under the rule, "no
extrajudicial settlement shall be binding upon any person who has not
participated therein or had no notice thereof." As the partition was a
total nullity and did not affect the excluded heirs, it was not correct for
the trial court to hold that their right to challenge the partition had
prescribed after two years from its execution in 1941. [Segura v.
Segura (1988)]
 Two-year prescriptive period (cont.)
• In the case of registered land, the two-year period is
deemed to commence on the date of registration
thereof, since it is the registration that gives
constructive notice to third persons of the existing
settlement of estate.
• In the case of registered land, the two-year period is
deemed to commence on the date of registration
thereof, since it is the registration that gives
constructive notice to third persons of the existing
settlement of estate
Period for claim of minor or incapacitated
person; exception to two-year period
• If on the date of the expiration of the period
of two (2) years prescribed in the preceding
section the person authorized to file a claim is
a minor or mentally incapacitated, or is in
prison or outside the Philippines, he may
present his claim within one (1) year after
such disability is removed. [Sec. 5, Rule 74]
 Affidavit of self-adjudication by sole heir
• An affidavit of self-adjudication is an affidavit required to be
executed by the sole heir of a deceased person in adjudicating
in himself the entire estate left by the decedent. It is filed in
the Register of Deeds. [Sec. 1, Rule 74]
• The second sentence of Section 1, Rule 74 of the Rules of
Court is patently clear that self-adjudication is only warranted
when there is only one heir:
“Section 1. Extrajudicial settlement by agreement between heirs. –– x x
x If there is only one heir, he may adjudicate to himself the entire estate
by means of an affidavit filed in the office of the register of deeds. x x x
(emphasis supplied)” [Rebusquillo v. Sps. Domingo (2014)]
 Affidavit of self-adjudication by sole heir
(cont.)
• As admitted by respondents, Avelina was not the sole
heir of Eulalio. In fact, as admitted by respondents,
petitioner Salvador is one of the co-heirs by right of
representation of his mother. Without a doubt,
Avelina had perjured herself when she declared in
the affidavit that she is "the only daughter and sole
heir of spouses EULALIO ABARIENTOS AND VICTORIA
VILLAREAL.“ The falsity of this claim renders her act
of adjudicating to herself the inheritance left by her
father invalid. [Rebusquillo v. Sps. Domingo (2014)]
 Summary settlement of estates of
small value
• Summary settlement of estate of small value
is a summary proceeding for the settlement of
estate of a decedent who dies testate or
intestate, whenever the gross value of the
estate of a deceased person does not exceed
Php 10,000.00. [Sec. 2, Rule 74]
 Summary settlement of estates of small
value, when allowed
• The court may summarily settle the state, provided the following requirements are
met:
a) The requirement that the gross value of the estate involved should not exceed Php 10,000.00 is
jurisdictional;
b) Notice published at least once a week for 3 consecutive weeks in a newspaper of general
circulation;
c) Hearing of petition held not less than 1 month nor more than 3 months from the date of the
LAST publication of notice;
d) Payment of such debts of the estate as the court shall find to be due;
e) The order of partition or award, if it involves real estate, recorded in the register of deeds; and
f) If personal property is to be distributed, a bond filed with the register of deeds in an amount to
be fixed by the court. [Sec. 2, Rule 74]
• No bond is necessary when only real estate is involved because the lien as recorded
is sufficient security for any claim which may be filed under Sec 4, that is, when an
heir or other person has been unduly deprived of his lawful participation in the
estate. [Sec. 3, Rule 74]
 Remedies of aggrieved parties after extra-
judicial settlement of estate
• Within the 2-year period
1) Claim on the bond for personal properties [Sec. 4, Rule
74]
2) Claim on lien on real property, notwithstanding any
transfers of real property that may have been made [Sec.
4, Rule 74]
3) Claim on lien on real property, notwithstanding any
transfers of real property that may have been made [Sec.
4, Rule 74]
4) Action to annul settlement (fraud [4 years] or implied
trust [10 years])
Remedies of aggrieved parties after extra-
judicial settlement of estate (cont.)
• After the lapse of the 2-year period
1) An heir may file an action for reconveyance within 10 years, which is
based on an implied or constructive trust pursuant to Article 1456 of the
CiviI Code (Tevez v. CA, G.R. No. 109963, October 13, 1999); except when
the property has passed to an innocent purchaser for value, in which case
the aggrieved heirs may sue for damaqes against their co-heirs who have
perpetrated the fraud (PEZA v. Fernandez, G.R. No. 138971, June 6, 2001);
2) Heirs excluded or who had no knowledge of the extrajudicial settlement
may file an annulment of the Deed of Extrajudicial Settlement of Estate,
which is imprescriptible (Reillo v. San Jose, G.R. No. 166393, June 18, 2009);
3) In case of preterition of a compulsory hair in a partition with bad faith, he
may ask for the rescission of such partition (CIVIL CODE, Art. 1104); and
4) Petition for relief on grounds of fraud, accident, mistake, and excusable
negligence (FAME) (RULES OF COURT, Rule 38).
 Production and probate of will
• What is probate of the will?
– A judicial act whereby an instrument is adjudged
valid and is ordered to be recorded. It is the
statutory method of establishing the proper
execution of the instrument and giving notice of
its contents. The probate of a will by the court
having jurisdiction thereof is considered as
conclusive as to its due execution and
testamentary capacity of the testator. [Mercado v.
Santos (1938)]
 Nature of probate proceeding
• Probate proceedings are:
1) In rem - The probate of a will in this jurisdiction is a proceeding in
rem. The provision of notice by publication as a pre-requisite to the
allowance of a will is constructive notice to the whole world, and
when probate is granted, the judgment of the court is binding upon
everybody, even against the State. [Coloma v. Coloma (1965)]
2) Mandatory -  No will shall pass either real or personal estate unless
it is proved and allowed in the proper court. [Sec. 1, Rule 75]
3) Not subject to estoppel – The doctrine of estoppel does not apply.
[Fernandez v. Dimagiba (1967)]
4) Imprescriptible – Right to ask for probate does not prescribe.
[Guevara v. Guevara (1956)]
 Probate of will is mandatory
• No will shall pass either real or personal property
unless it is proved and allowed in accordance
with the Rules of Court. [Sec. 1, Rule 75]
• The law enjoins the probate of the Will and
public policy requires it, because unless the Will
is probated and notice thereof given to the
whole world, the right of a person to dispose of
his property by Will may be rendered nugatory.
[Maninang v. CA (1982)]
 Issues that may be resolved in probate
proceedings
• As a general rule, courts in probate proceedings are
limited to pass only upon the extrinsic validity of
the will sought to be probated.
• Thus, the court merely inquires on: (DCT)
1) The due execution of the will;
2) Compliance with the formalities prescribed by law; and
3) The testamentary capacity of the testator.
• The intrinsic validity is not considered since the
consideration thereof usually comes only after the will
has been proved and allowed. [Reyes v. CA (1997)]
 When may probate court pass upon the
intrinsic validity of the will
• General rule: The probate of a will does not look into its intrinsic validity.
• Exception: The probate court may pass upon the intrinsic validity of the will
in the following instances:
1) When the defect of the will is apparent on its face and the probate of
the will may become a useless ceremony if it is intrinsically invalid;
2) “Practical considerations" demanded it as when there is preterition of
heirs or the testamentary provisions are of doubtful legality;
3) Where the parties agree that the intrinsic validity be first determined;
and
4) Under exceptional circumstances, as when the situation constrains it to
do and pass upon certain provisions of the will. [Reyes v. CA (1997)]
 Probate court cannot pass upon issue of
ownership
• As a rule, the question of ownership is an
extraneous matter which the Probate Court cannot
resolve with finality. Thus, for the purpose of
determining whether a certain property should or
should not be included in the inventory of estate
properties, the Probate Court may pass upon the
title thereto, but such determination is provisional,
not conclusive, and is subject to the final decision in
a separate action to resolve title. [Pastor Jr. v. CA
(1983)]
 Who may petition for probate
• The following persons may file a petition for
allowance of a will: (EDIT)
1) Executor named in the will;
2) Devisee, or legatee named in a will;
3) Any other person interested in the estate; or
4) Testator himself during his lifetime. [Sec. 1, Rule
76]
 Who is an interested party
• It is a well-settled rule that in order that a person
may be allowed to intervene in a probate proceeding
he must have an interest in the estate, or in the will,
or in the property to be affected by it either as
executor or as a claimant of the estate [Ngo The Hua
v. Chung Kiat Hua (1963)]; and
• An interested party has been defined as one who
would be benefited by the estate such as an heir or
one who has a claim against the estate like a creditor.
[Sumilang v. Ramagosa (1967)]
 Persons entitled to notice
• The designated or other known heirs, legatees, and devisees, residing in the
Philippines, and the executor or co-executor if such places of residence be
known shall be entitled to notice of probate.
• If the testator asks for the allowance of his own will, notice shall be sent only
to his compulsory heirs. [Sec. 4, Rule 76]
• It is clear from the aforecited rule that notice of the time and place of the
hearing for the allowance of a will shall be forwarded to the designated or
other known heirs, legatees, and devisees residing in the Philippines at their
places of residence, if such places of residence be known.
• Individual notice upon heirs, legatees and devisees is necessary only when
they are known or when their places of residence are known. In other
instances, such notice is not necessary and the court may acquire and
exercise jurisdiction simply upon the publication of the notice in a newspaper
of general circulation.[De Aranz v. Galing (1988)]
 Effect of failure to send notice despite
knowledge of their residence
• Where the names of the heirs and their
residences are known, notice of the eharing of
the petition in accorance with Sec. 4 of Rule 76
of the Rules of Court is mandatory and such
requirment cannot be satisfied by mere
publication.
• The omission constitutes a reversible error for
being constitutive of grave abuse of discretion.
[De Aranz v. Galing (1988)]
 When notice should be made
• If the notice is sent by mail, at least twenty
(20) days before the hearing.
• If the notice is sent by personal service, it
must be made 10 days before the hearing.
[Sec. 4, Rule 76]
 Duty of the custodian of a will
• The person who has custody of a will shall, within 20
days after he knows of the testator's death, deliver
the will to the court having jurisdiction or to the
executor of the will. [Sec. 2, Rule 75]
• A person having custody of a will after the death of
the testator who neglects without reasonable cause
to deliver the same, when ordered so to do, to the
court having jurisdiction, may be committed to
prison and there kept until he delivers the will. [Sec.
5, Rule 75]
 Contents of petition for allowance of will

• A petition for the allowance of a will must show, so

far as known to the petitioner: (JN-VLC)
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. [Sec. 2, Rule 76]
 Jurisdictional facts
• The jurisdiction facts required to be alleged in the petition
for probate of the will are the following: (DRV)
1) The fact of Death of the decedent;
2) His Residence at the time of his death in the province where
the probate court is sitting, or if he is an inhabitant of a foreign
country, his having left his estate in such province.“ [Cuenco v.
CA (1973)]; and
3) The gross Value of the estate - The applicable law, therefore,
confers jurisdiction on the RTC or the MTCs over probate
proceedings depending on the gross value of the estate, which
value must be alleged in the complaint or petition to be filed.
[Franiela v. Banayad, Jr. (2009)]
 Grounds for disallowing a will
• The will shall be disallowed in any of the following cases: (ExITUS)
a) If not Executed and attested as required by law;
b) If the testator was Insane, or otherwise mentally incapable to make
a will, at the time of its execution;
c) If it was executed under duress, or the influence of fear, or Threats;
d) If it was procured by Undue and improper pressure and influence,
on the part of the beneficiary, or of some other person for his
benefit;
e) If the Signature of the testator was procured by fraud or trick, and
he did not intend that the instrument should be his will at the time
of fixing his signature thereto. [Sec. 9, Rule 76]
• The presence of any of the grounds for disallowance of will renders the
will void and not merely voidable. [Balane]
 Grounds for disallowing a will (cont.)
• These lists are exclusive; no other grounds can serve to
disallow a will.
• Thus, in a petition to admit a holographic will to probate, the
only issues to be resolved are:
1) whether the instrument submitted is, indeed, the decedent's last
will and testament;
2) whether said will was executed in accordance with the formalities
prescribed by law;
3) whether the decedent had the necessary testamentary capacity at
the time the will was executed; and
4) whether the execution of the will and its signing were the
voluntary acts of the decedent. [Ajero v. CA (1994)]
 Reprobate

• Reprobate is the re-authentication of a will

already probated and allowed in a foreign country.
• Reprobate is specifically governed by Rule 77 of
the Rules of Court.
• In reprobate, the local court acknowledges as
binding the findings of the foreign probate court
provided its jurisdiction over the matter can be
established. [Palagnas v. Palagnas (2011)]
 Why reprobate is necessary
• The necessity of presenting evidence on the foreign laws upon which the probate
in the foreign country is based is impelled by the fact that our courts cannot take
judicial notice of them. [Philippine Commercial and Industrial Bank v. Escolin
(1974)]
• It is true that we have here in the Philippines only an ancillary administration in
this case, but, it has been held, the distinction between domiciliary or principal
administration and ancillary administration serves only to distinguish one
administration from the other, for the two proceedings are separate and
independent.
• The reason for the ancillary administration is that, a grant of administration does
not ex proprio vigore, have any effect beyond the limits of the country in which it
was granted.
• Hence, we have the requirement that before a will duly probated outside of the
Philippines can have effect here, it must first be proved and allowed before our
courts, in much the same manner as wills originally presented for allowance
therein. [CIR v. Fisher (1961)]
 Principal/domiciliary administration vs.
Ancillary administration
• That which is granted in the jurisdiction of decedent's
last domicile is termed the principal/ domiciliary
administration, while any other administration is
termed the ancillary administration.
• The ancillary administration is proper, whenever a
person dies, leaving in a country other than that of his
last domicile, property to be administered in the nature
of assets of the deceased liable for his individual debts
or to be distributed among his heirs." [Testate Estate of
Idonah Perkins v. Benguet Consolidated (1968)]
 Requisites before will proved outside
allowed in the Philippines
• Article 816 of the Civil Code of the Philippines provides thus:
– “Art. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the place
in which he resides, or according to the formalities observed in his
country, or in conformity with those which this Code prescribes.”
• Requisites:
1) Duly authenticated copy of will
2) Duly authenticated order or decree of its allowance in foreign country
3) Petition for allowance in Philippines filed by the executor or other
person interested.
• The court having jurisdiction shall fix a time and place for the
hearing and cause notice thereof to be given as in case of an
original will presented for allowance. [Sec. 2, Rule 77]
 Evidence necessary for reprobate
• The evidence necessary for the reprobate or allowance
of wills which have been probated outside of the
Philippines are as follows:
1) the due execution of the will in accordance with the foreign
laws;
2) the testator has his domicile in the foreign country and not
in the Philippines;
3) the will has been admitted to probate in such country;
4) the fact that the foreign tribunal is a probate court, and
5) the laws of a foreign country on procedure and allowance of
wills. [Vda. De Perez v. Tolete (1994)]
 Matters to be proved in reprobate of the
will
• The evidence necessary for the reprobate or allowance
of wills which have been probated outside of the
Philippines are as follows:
1) The due execution of the will in accordance with the
foreign laws;
2) The testator has his domicile in the foreign country and not
in the Philippines;
3) The will has been admitted to probate in such country;
4) The fact that the foreign tribunal is a probate court, and
5) The laws of a foreign country on procedure and allowance
of wills. [De Perez v. Tolete (1994)]
 Effects of probate
• Decree of probate is conclusive as to its due
execution, subject to the right of appeal. [Sec. 1,
Rule 75]
• If a decision admitting a will to probate becomes
final, there can no longer be any challenge to its due
execution and authenticity. Thus, a criminal action
will not lie against an alleged forger of a will which
had been duly admitted to probate by a court of
competent jurisdiction. [Mercado v. Santos (1938)]
 Effects of reprobate
• The allowance of a will in a reprobate proceeding
shall have the following effect:
1) The will shall be treated as if originally proved and
allowed in Philippine courts [De Perez v. Tolete (1994)];
2) Letters testamentary or administration with a will
annexed shall extend to all estates of the Philippines;
3) After payment of just debts and expenses of
administration, the residue of the estate shall be
disposed of as provided by law in cases of estates in the
Philippines belonging to persons who are inhabitants of
another state or country. [Sec. 4, Rule 77]
Initiatory pleading in probate proceedings

• If a person dies testate, the initiatory pleading is a:

– Petition for allowance of will and for letters testamentary,
if there is am executor named in the will; or
– Petition for allowance of will and for letters of
administration with the will annexed, in case there is a
will but there is no executor named on the will or the
executor named in the will is incompetent, refuses the
appointment, or fails to give a bond.
• If a person dies intestate, the initiatory pleading is a
petition for letters of administration.
Letters testamentary and of administration

• Letters testamentary is the appointment issued by a

probate court, after the will has been proved and
allowed, to the person named as executor therein to
administer the estate of the deceased testate,
provided he is competent, accepts the trust, and
gives a bond. [Sec. 4, Rule 78]
• Letters of administration is the appointment issued
by a court to a competent person to administer the
estate of a deceased who died without will provided
such person accepts the trust and gives a bond.
 Executor v. Administrator
• An executor is the person named in the will to
administer the decedent’s estate and to carry out the
provisions thereof.
• An administrator is the person appointed by the court
to administer the estate in the ff. instances: (VIN-ExRIB)
a) where the decedent died Intestate;
b) where the will was Void and not allowed to probate;
c) where No executor was named in the will; or
d) the Executor named therein is Incompetent, Refuses the
trust, or fails to give a Bond.
 Letters testamentary issued when will
allowed
• When a will has been proved and allowed, the
court shall issue letters testamentary thereon
to the person named as executor therein, if:
1) He is competent;
2) Accepts the trust; and
3) Gives bond as required by these rules. [Sec. 4,
Rule 78]
 When and to whom letters of
administration granted
• He probate court may issue letters of
administration if:
a) No executor is named in the will;
b) The executor or executors are:
• Incompetent,
• Refuse the trust, or
• Fail to give bond; or
c) A person dies intestate. [Sec. 6, Rule 78]
Who are incompetent to serve as executors
or administrators
• No person in competent to serve as executor or administrator
who:
a) Is a minor;
b) Is not a resident of the Philippines; and
c) Is in the opinion of the court unfit to execute the duties of the
trust by reason of drunkenness, improvidence, or want of
understanding or integrity, or by reason of conviction of an offense
involving moral turpitude. [Sec. 1, Rule 78]
• In this jurisdiction, one is considered to be unsuitable for
appointment as administrator when he has adverse interest
of some kind of hostility to those immediately interested in
the estate. [Medina v. CA (1973)]
 Determination of executor or administrator
discretionary upon the court
• The Rules of Court gives the lower court the duty
and discretion to determine whether in its opinion
an individual is unfit to serve as an executor.
• The sufficiency of any ground for removal should
thus be determined by the said court, whose
sensibilities are, in the first place, affected by any
act or omission on the part of the administrator
not conformable to or in disregard of the rules of
orders of the court. [Matute v. CA (1969)]
 Choice of executor prerogative of the
testator
• The choice of his executor is a precious prerogative of
a testator, a necessary concomitant of his right to
dispose of his property in the manner he wishes. The
curtailment of this right may be considered as a
curtailment of the right to dispose and as the rights
granted by will take effect from the time of death, the
management of his estate by the administrator of his
choice should be made as soon as practicable, when
no reasonable objection to his assumption of the trust
can be interposed any longer. [RP vs. Marcos (2009)]
 Order of preference
• The letters of administration shall be granted to the following persons in the order
of preference:
1) Surviving Spouse or Next of Kin or Their Nominee – To the surviving
husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or
wife, or next of kin, requests to have appointed, if competent and willing
to serve;
2) Principal Creditor/s – If such surviving husband or wife, as the case may be,
or next of kin, or the person selected by them, be incompetent or unwilling,
or if the husband or widow, or next of kin, neglects for thirty (30) days after
the death of the person to apply for administration or to request that
administration be granted to some other person, it may be granted to one
or more of the principal creditors, if may be granted to one or more of the
principal creditors, if competent and willing to serve;
3) Stranger – If there is no such creditor competent and willing to serve, it may
be granted to such other person as the court may select. [Sec. 6, Rule 78]
 Order of preference (cont.)
• However, the order of preference is not absolute for it depends on the
attendant facts and circumstances of each case and it has been long
held that the selection of an administrator lies in the sound discretion
of the trial court. [Suntay III v. Cojuangco-Suntay (2010)]
• A probate court cannot arbitrarily and without sufficient reason
disregard the preferential rights of the surviving spouse to the
administration of the estate of the deceased spouse. But, if the person
enjoying such preferential rights is unsuitable, the court may appoint
another person. The determination of a person's suitability for the
office of administrator rests, to a great extent, in the sound judgment
of the court exercising the power of appointment and such judgment
will not be interfered with on appeal unless it appears affirmatively
that the court below was in error. [Uy v. CA (2006)]
 Opposition to issuance of letters
testamentary; simultaneous filing of
petition for administration
• Any person interested in a will may state in
writing the grounds why letters testamentary
should not issue to the persons named therein
as executors, or any of them, and the court,
after hearing upon notice, shall pass upon the
sufficiency of such grounds.
• A petition may, at the time, be filed for letters
of administration with the will annexed. [Sec.
1, Rule 79]
 Opposition to issuance of letters
testamentary; simultaneous filing of
petition for administration (cont.)
• Only an interested person may oppose the
petition for issuance of letters of administration.
• An interested person is one who would be
benefited by the estate such as an heir, or one
who has a claim against the estate, such as a
creditor.
• This interest must be material and direct, not
merely indirect or contingent. [De Chua v. CA
(1998)]
 Opposition to issuance of letters
testamentary; simultaneous filing of
petition for administration (cont.)
• Thus, a claimant whose right depends on the
disallowance of the second will and the incapacity
of the legatees in the first will to inherit is not an
interested party since his interest depends upon a
contingency. [Espinosa v. Barrios (1940)]
• An heir who has assigned his hereditary rights
before settlement proceedings were commenced
is not longer an interested person qualified to file
or oppose a petition for letters of administration.
 Lack of interest is a ground for the
dismissal of the action on the ground of
lack legal capacity to sue
• Of course, since the opening sentence of the
section requires that the petition must be filed
by an interested person, it goes without saying
that a motion to dismiss may lie not on the
basis of lack of jurisdiction on the part of the
court, but rather on the ground of lack of legal
capacity to institute the proceedings. [Pilipinas
Shell v. Dumlao (1992)]
 Powers and duties of executors and
administrators
• The executor or administrator shall have the ff. powers and duties: (ExAM-
PIPE)
1) To Examine and make invoices of the property belonging to the partnership in case
of a deceased partner;
2) To have Access to, and examine and take copies of books and papers relating to the
partnership in case of a deceased partner;
3) To Maintain in tenantable repair, the houses and other structures and fences
belonging to the estate, and deliver the same in such repair to the heirs or devisees
when directed to do so by the court;
4) To Possess and manage the real as well as personal estate of the deceased so long
as it is necessary for the payment of the debts and the expenses of administration;
5) To make Improvements on the properties under administration with the necessary
court approval except for necessary repairs;
6) For the Payment of the debts; and
7) For the payment of Expenses of administration. [Rule 84]
 Duty to account by the executor or
administrator; mandatory
• The duty of an executor or administrator to render an
account is not a mere incident of an administration
proceeding which can be waived or disregarded as it
is a duty that has to be performed and duly acted
upon by the court before the administration is finally
ordered closed and terminated, to the end that no
part of the decedent's estate be left unaccounted for.
The fact that the final accounts had been approved
does not divest the court of jurisdiction to require
supplemental accounting. [Vda. De Chua v. CA (1998)]
 Restrictions on the powers
• The executor or administrator cannot: (PEAS)
1) Profit by the increase or suffer loss by the decrease in the
value of the property under administration; [Sec. 2, Rule 85]
2) Enter into any transaction involving estate without any prior
approval of the court, when the estate of the deceased is
already the subject of a testate or intestate proceeding;
[Estate of Olave v. Reyes (1983)]
3) Acquire by purchase, even a public or judicial auction, either
in person or through mediation of another, the property of
the estate under administration; [Art. 1491, Civil Code]
4) Exercise acts of Strict ownership without court approval.
[Visaya v. Suguitan (1955)]
 Special administrator
• The appointment of a special administrator lies in the sound discretion of
the probate court.
• A special administrator is a representative of a decedent appointed by the
probate court to care for and preserve his estate until an executor or
general administrator is appointed.
• When appointed, a special administrator is regarded not as a
representative of the agent of the parties suggesting the appointment, but
as the administrator in charge of the estate, and, in fact, as an officer of
the court. As such officer, he is subject to the supervision and control of
the probate court and is expected to work for the best interests of the
entire estate, especially its smooth administration and earliest settlement.
• The principal object of appointment of temporary administrator is to
preserve the estate until it can pass into hands of person fully authorized
to administer it for the benefit of creditors and heirs. [Heirs of Castillo v.
Lacuata-Gabriel (2005)]
 Grounds for appointment of special
administrator
• A special administrator shall be appointed when:
1) There is delay in granting letters testamentary or
of administration by any cause including an appeal
from the allowance of disallowance of a will. [Sec.
1, Rule 80]; or
2) The executor or administrator is a claimant of the
estate he represents, in which case the special
administrator shall have the same power and be
subject to the same liability as the general
administrator or executor. [Sec. 8, Rule 86]
 No need to appoint a special administrator pending
appeal from the appointment of a regular
administrator
• The administrator-appointee should be the
administrator pending appeal from his
appointment. [Relucio v. San Jose (1952)]
Powers and duties of a special administrator

• A special administrator has the following powers and

duties: (PoP-CoPS)
1) To take Possession and charge of the goods, chattels, rights,
credits, and estate of the deceased;
2) To Preserve such goods, chattels, rights, credits, and estate of
the deceased for the executor or administrator afterwards
appointed;
3) To Commence and maintain suits as administrator;
4) To Pay such debts of the deceased only as ordered by the court;
and
5) To Sell only such perishable and other property as the court
orders sold. [Sec. 2, Rule 80]
Restrictions on the powers and duties of the
special administrator
• He may sell only such perishable and other
property as the court orders sold. A special
administrator shall not be liable to pay any
debts of the deceased unless so ordered by
the court. [Sec. 2, Rule 80]
 Grounds for removal of administrator
• The following are the grounds for the removal of an
executor or administrator: (PARIS-U)
1) Neglect to Render his account (within 1 year and when
required by the court);
2) Neglect to Settle the estate according to law;
3) Neglect to Perform an order or judgment of the court or a
duty expressly provided by the rules;
4) Absconding;
5) Insanity;
6) Incapability or Unsuitability to discharge the trust. [Sec. 2,
Rule 80]
 Other grounds for the removal of the
administrator discretionary upon the court
• The probate court may appoint or remove
special administrators based on grounds other
than those enumerated in the Rules at its
discretion, such that the need to first pass upon
and resolve the issues of fitness or unfitness
and the application of the order of preference
under Section 6 of Rule 78, as would be proper
in the case of a regular administrator, do not
obtain. [Ocampo v. Ocampo (2010)]
When powers of special administrator
cease
• The powers of the special administrator shall
cease when letters testamentary or of
administration are granted on the estate.
• He shall forthwith deliver to the executor or
administrator the goods, chattels, money, and
estate of the deceased in his hands. [Sec. 3,
Rule 80]
Order of appointment of special administrator
an interlocutory order subject to certiorari
• The appointment or removal of special administrators,
being discretionary, is thus interlocutory and may be
assailed through a petition for certiorari under Rule
65 of the Rules of Court. [Ocampo v. Ocampo (2010)]
• The appointment of a special administrator is
interlocutory, discretionary on the part of the RTC and
non-appealable. However, it may be subject
of certiorari if it can be shown that the RTC committed
grave abuse of discretion or lack of or in excess of
jurisdiction. [Jamero v. Melicor (2005)]
 Claims against the estate
• Upon the death of the person, all his property is burdened with all
his debts, his debts creating an equitable lien thereon for the
benefit of the creditors. And such lien continues until the debts are
extinguished either by the payment, prescription, or satisfaction in
one of the modes recognized by law. [Suiliong & Co. v. Chio-Taysan
(1908)]
• The word "claims" as used in statutes requiring the presentation of
claims against a decedent's estate is generally construed to mean
debts or demands of a pecuniary nature which could have been
enforced against the deceased in his lifetime and could have been
reduced to simple money judgments; and among these are those
founded upon contract. [Gutierrez v. Baretto-Datu (1962)]
 Money claims
• The following are money claims: (CFSJ)
1) All claims for money against the decedent, arising
from Contract, express or implied, whether the
same be due, not due, or contingent;
2) All claims for Funeral expenses;
3) All claims for expenses for the last Sickness of the
decedent; and
4) Judgment for money against the decedent. [Sec.
5, Rule 86]
 Notice to creditors to be issued by court

• Immediately after granting letters

testamentary or of administration, the court
shall issue a notice requiring all persons
having money claims against the decedent to
file them in the office of the clerk of said
court. [Sec. 1, Rule 86]
 Time within which claims shall be filed;
exceptions
• General rule: Claims must be filed within the time specified by the
court in its notice which shall not be less than 6 months nor more
than 12 months from the date of the first publication of the
notice. [Sec. 2, Rule 86]
• Exceptions:
1) Tardy claim – At any time before an order of distribution is entered, on
application of a creditor who has failed to file his claim within the time
previously limited, the court may, for cause shown and on such terms as
are equitable, allow such claims to be filed within a time not exceeding
1 month from the order allowing belated claims [Sec. 2, Rule 86]; and
2) Counterclaim – Claims against the estate may be set forth as
counterclaims in any action that the executor or administrator may
bring against the claimants [Sec. 5, Rule 86].
 Statute of non-claims
• The statute of non-claims is embodied in Section 5 of Rule
86 of the Rules of Court in fixing the period tor the filing
of claims against the estate of the decedent.
• Claim must be filed within the time limited in the notice;
otherwise they are barred forever. [Sec. 5, Rule 86]
• Its purpose is to settle the estate with dispatch, so that
the residue may be delivered to the persons entitled
thereto without their being afterwards called upon to
respond in actions for claims. [Rio y Compania v. Maslog
(1959)]
 Claim of executor or administrator against
the estate
• If the executor or administrator has a claim against
the estate he represents, he shall give notice thereof,
in writing, to the court, and the court shall appoint a
special administrator, who shall, in the adjustment of
such claim, have the same power and be subject to
the same liability as the general administrator or
executor in the settlement of other claims.
• The court may order the executor or administrator to
pay to the special administrator necessary funds to
defend such claim. [Sec. 9, Rule 86]
 Payment of debts
• If the estate is sufficient, debts shall be paid in full. If,
after hearing all the money claims against the estate, and
after ascertaining the amount of such claims, it appears
that there are sufficient assets to pay the debts, the
executor or administrator shall pay them within the time
limited for that purpose [Rule 88, Sec. 1, Rule 88];
• If the testator makes provisions by his will, or designates
the estate to be appropriated for the payment of his
debts, the expenses of administration, or the family
expenses, they shall be paid according to the provisions
of the will [Sec. 2, Rule 88];
 Payment of debts (cont.)
• If the provision made by the will or the estate appropriated is not
sufficient for that purpose, such part of the estate of the testator, real
or personal, as is not disposed of by will, if any, shall be appropriated
for that purpose (Rule 88, Sec. 2);
• The personal estate of the deceased not disposed of by will shall be
first chargeable with the payment of debts and expenses (Rule 88,
Sec. 3);
• If said personal estate is not sufficient for that purpose, or its sale
would redound to the detriment of the participants of the estate, the
whole of the real estate not disposed by of will, or so much thereof
as is necessary, may be sold, mortgaged, or otherwise encumbered
for that purpose by the executor or administrator, after obtaining the
authority of the court therefor (Rule 88, Sec. 3);
 Payment of debts (cont.)
• If there is still a deficiency, the debt shall be satisfied
through the contributive shares of the devisees,
legatees, or heirs who have been in possession of
portions of the estate before debts and expenses have
been settled and paid. [Sec. 6, Rule 88]
• If court is satisfied that a contingent claim is valid, it may
order the executor /administrator to:
a) Retain in his hands sufficient estate for the purpose of paying
such contingent claim when it becomes absolute
b) If estate insolvent - retain a portion equal to the dividend of
the other creditors [Sec. 4, Rule 88]
 Actions by executors and administrator
against third party
• "When the demand is in favor of the administrator and the party
against whom it is enforced is a third party, not under the court's
jurisdiction, the demand cannot be by mere motion by the
administrator, but by an independent action against the third person."
Matters affecting property under judicial administration may not be
taken cognizance of by the court in the course of intestate
proceedings, if the "interests of third persons are prejudiced". [Dela
Cruz v. Camon (1966)]
• The trial court has no authority to decide whether the properties, real
or personal, belong to the estate or to the persons examined. If after
such examination there is good reason to believe that the person
examined is keeping properties belonging to the estate, then the
administrator should file an ordinary action in court to recover the
same. [Chua v. Absolute Management Corp. (2003)]
 Executor or administrator may bring or
defend actions which survive
• For the recovery or protection of the property
or rights of the deceased, an executor or
administrator may bring or defend, in the right
of deceased, actions for causes which survive.
[Sec. 2, Rule 87]
 Actions that may be brought against
executors and administrators
• The following actions may be commenced against the
executor or administrator, to wit:
1) Action to Recover real or personal property, or an
interest therein, from the estate;
2) Action to enforce a Lien on real or personal property; and
3) Action to recover damages for an Injury to person or
property. [Sec. 1, Rule 87]
• No action upon a claim for the recovery of money or debt or
interest thereon shall be commenced against the executor or
administrator. [Sec. 1, Rule 87]
 When heirs may act in place of the
Administrator
• The instances wherein the heirs may bring suit
for and in behalf of the estate are the ff:
1) No executor or administrator appointed yet;
2) If the executor or administrator is unwilling or
refuses to bring suit; and
3) When the administrator is alleged to have
participated in the act complained of and he is
made a party defendant. [Riofero v. CA (2004)]
 Requisites before creditor may bring an action for
recovery of property fraudulently conveyed by the
deceased
• For the creditor to file an action to recover property fraudulently conveyed by the deceased, the
following requisites must be present:
1) There is a DEFICIENCY OF ASSETS in the hands of an executor or administrator for the
payment of debts and expenses of administration;
2) The deceased in his lifetime had made or attempted to make a FRAUDULENT CONVEYANCE
of his real or personal property, or a right or interest therein, or a debt or credit, with intent
to defraud his creditors or to avoid any right, debt or duty; or had so conveyed such
property, right, debt, or credit that by law the conveyance would be void as against his
creditors;
3) The subject of the attempted conveyance would be liable to ATTACHMENT by any of them
in his lifetime [Sec. 9, Rule 87];
4) The executor or administrator has shown to have NO DESIRE TO FILE the action or failed to
institute the same within a reasonable time;
5) LEAVE is granted by the court to the creditor to file the action;
6) A BOND is filed by the creditor as prescribed in the Rules; and
7) The action by the creditor is in the NAME of the executor or administrator [Sec. 10, Rule
87]. The last three requisites are unnecessary where the grantee is the executor or
administrator himself, in which case the action should be in the name of all the creditors.
 Distribution and partition
• Before there could be a distribution of the estate, the
following stages must be followed:
1) Liquidation of estate – payment of obligations of
deceased
2) Declaration of heirs – to determine to whom the residue
of the estate should be distributed
1) Determination of the right of a natural child
2) Determination of proportionate shares of distributees
• Afterwards, the residue may be distributed and delivered to
the heirs. [3-A Herrera 173, 1996 Ed.]
 Liquidation
• Liquidation means determination of all the
assets of the estate and payment of all the
debts and expenses. [Bernardo v. CA (1963)]
• Administration is for the purpose of liquidation
of the estate and distribution of the residue
among the heirs and legatees. And liquidation
means the determination of all the assets of
the estate and payment of all the debts and
expenses. [Luzon Surety v. Quebrar (1984)]
 When can distribution of the
estate be done
• Only after the payment of debts, estate taxes,
administration expenses, funeral charges, and the
allowance of the widow have been paid.
• No distribution shall be allowed until the payment of
the obligations above mentioned has been made or
provided for, unless the distributees, or any of them,
give a bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations
within such time as the court directs. [Sec. 1, Rule
90]
When can distribution of the estate be done
(cont.)
• General rule: Before an order of distribution or
assignment, it must be shown that the debts,
funeral expenses, and expenses of
administration, allowance to widow, and
inheritance tax chargeable to the estate have
been paid.
• Exception: If the distributees give a bond
conditioned for the payment of said obligations.
[Sec. 1, Rule 90; Estate of Ruiz v. CA (1996)]
What the order of distribution shall provide

• The order shall assign the residue of the estate

to the persons entitled to the same, naming
them and the proportions, or parts, to which
each is entitled. [Sec. 1, Rule 90]
Controversy as to who are the lawful heirs

• If there is a controversy before the court as to who

are the lawful heirs of the deceased person or as the
distributive shares to which each person is entitled
under the law, the controversy shall be heard and
decided as in ordinary cases. [Sec. 1, Rule 90]
• The purpose of a hearing is to ascertain the truth of
the matters in issue with the aid of documentary and
testimonial evidence as well as the arguments of the
parties either supporting or opposing the evidence.
[Quita v. CA (1998)]
 Questions as to advancement to be
determined
• Questions as to advancement made, or
alleged to have been made, by the deceased
to any heir may be heard and determined by
the court having jurisdiction of the estate
proceedings; and the final order of the court
thereon shall be binding on the person raising
the questions and on the heir. [Sec. 2, Rule 90]
Matters relating to the rights of filiation and
heirship
• 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.
• Jurisprudence dictates that the determination of who are the legal heirs of
the deceased must be made in the proper special proceedings in court,
and not in an ordinary suit for recovery of ownership and possession of
property.
• This must take precedence over the action for recovery of possession and
ownership. The Court has consistently ruled that the trial court cannot
make a declaration of heirship in the civil action for the reason that such a
declaration can only be made in a special proceeding.
• The status of an illegitimate child who claimed to be an heir to a
decedent’s estate could not be adjudicated in an ordinary civil action
which, as in this case, was for the recovery of property. [Gabatan v. CA
(2009)]
 Leonen; Capablanca v. Bas (2017)
• There is no need for a separate proceeding for a declaration of
heirship in order to resolve petitioner's action for cancellation
of titles of the property.
• Petitioner's claim is anchored on a sale of the property to her
predecessor-in-interest and not on any filiation with the original
owner. What petitioner is pursuing is Norberta's right of
ownership over the property which was passed to her upon the
latter's death.
• This Court has stated that no judicial declaration of heirship is
necessary in order that an heir may assert his or her right to the
property of the deceased. [Leonen; Capablanca v. Bas (2017)]
 During pendency of probate case, ordinary
action instituted
• While there is a pending probate proceeding, a separate
action for the declaration of heirs is not proper. It is the
probate court which has the power to determine the issue
of heirship.
• While the estate is being settled in the Court of First
Instance in a special proceeding, no ordinary action can
be maintained in that court, or in any other court, by a
person claiming to be the heir, against the executor or
against other persons claiming to be heirs, for the
purpose of having the rights of the plaintiff in the estate
determined. [Pimentel v. Palanca (1905)]
 Project of partition
• Project of partition which, as its own name
implies, is merely a proposal for distribution of
the estate, that the court may accept or reject,
it is the court alone that makes the
distribution of the estate and determines the
persons entitled thereto and the parts to
which each is entitled, and it is that judicial
decree of distribution, once final, that vests
title in the distributees. [Reyes v. CA (1967)]
 Remedy of an heir entitled to residue but
not given his share
• IT DEPENDS.
1) If duly notified: He must move for reconsideration or appeal therefrom within
30 days from notice; otherwise, the order becomes final.
2) If the heir and his address is known but wasn’t notified: He can file an action to
annul the judgment. The failure o notify him deprives the probate court of
jurisdiction to render a valid judgment.
3) If the heir or his address is unknown and wasn’t notified: He can file a motion
with the probate court for the delivery of his share or to re-open the
proceedings if the order of closure is not yet final. If the order of closure has
become final, the remedy of the heir is to file an action for reconveyance against
the distributees.
4) If the heir is given a share in the order of distribution: He may move for the
delivery of the same to him, even after the closure of the proceedings, subject
to acquisitive prescription in favor of adverse possessors. The provisions of Sec.
6, Rule 39 refers to civil actions and is not applicable to special proceedings.
Probate court generally cannot issue a writ
of execution
• The probate court is not supposed to issue a
writ of execution because its orders usually
refer to the adjudication of claims against the
estate which the executor or administrator
may satisfy without the necessity of resorting
to a writ of execution. The probate court, as
such, does not render any judgment
enforceable by execution. [Vda de Valera v.
Ofilada (1974)]
 Instances when probate court may issue
writ of execution
• The circumstance that the Rules of Court expressly
specifies that the probate court may issue execution:
1) To satisfy the contributive shares of devisees, legatees and
heirs in possession of the decedent's assets [Sec. 6, Rule 88];
2) To enforce payment of the expenses of partition [Sec. 3, Rule
90]; and
3) To satisfy the costs when a person is cited for examination in
probate proceedings [Sec. 13, Rule 142].
• Under the rule of inclusion unius est exclusion alterius,
that those are the only instances when it can issue a writ
of execution. [Vda de Valera v. Ofilada (1974)]
 End of probate proceedings; payment of
all debts and delivery of remaining estate
to heirs
• The probate court loses jurisdiction of an estate
under administration only after the payment of all
debts and the delivery of the remaining estate to
the heirs entitled thereto.
• The finality of the approval of the project of partition
by itself alone does not terminate the probate
proceeding; does not prevent the heir from bringing
an action to obtain his share, provided the
prescriptive period therefor has not elapsed. [Guilas
v. Judge of CFI of Pampanga (1972)]
 Trustees
• A trust is a confidence reposed in one person,
called the trustee, for the benefit of another,
called the cestui que trust, with respect to
property held by the former to the latter.
• The person in whom the confidence is reposed
as regards property for the benefit of another
is known as trustee. [Special Proceedings by
Gemilito Festin, Second Edition, 2011, Page
134]
 Distinguish: trustee and
executor/administrator
• In a trust, the trustee or holder has legal title
to the property, while a guardian,
administrator, or executor does not.
Appointment of trustee; when necessary

• Such appointment is necessary if a testator

has omitted in his will to appoint a trustee in
the Philippines, and if such appointment is
necessary to carry into effect the provisions of
the will. [Sec. 2, Rule 98]
 Where trustee appointed
• The RTC in which the will was allowed, if it be
a will allowed in the Philippines.
• If the will was allowed in a foreign country,
then the RTC of the province in which the
property, or some portion thereof, affected by
the trust is situated. [Sec. 1, Rule 98]
 Conditions of the bond
• The following conditions shall be deemed a part of the bond
whether written therein or not:
a) INVENTORY. The trustee shall submit to the court an inventory of the
personal and real estate belonging to him as trustee who shall have come
to his possession or knowledge;
b) MANAGEMENT AND DISPOSITION. The trustee shall manage and dispose
of such estate and faithfully discharge his trust in relation thereto;
c) ACCOUNT. The trustee shall render under oath at least once a year until
his trust is fulfilled an account of the property in his hands and of the
management and disposition thereof;
d) SETTLEMENT OF ACCOUNTS. The trustee shall settle his accounts and
deliver the remaining estate in his hands to those entitled thereto. [Sec. 6,
Rule 98]
 Exemption from posting of bond
• The court may exempt a trustee under a will from
giving a bond when the testator has directed or
requested such exemption.
• The court may exempt any trustee (whether
appointed in the will or not) when all persons
beneficially interested in the trust, being of full age,
request the exemption.
• Such exemption may be cancelled by the court at any
time and the trustee required to forthwith file a
bond. [Sec. 5, Rule 98]
 Requisites for the removal and resignation
of a trustee
• If removal appears essential in the interests of the petitioners:
1) Petition to the proper RTC of the parties beneficially interested;
2) Due notice to the trustee; and
3) Hearing
• Removal of a trustee who is insane or otherwise incapable of
discharging his trust or evidently unsuitable therefore:
1) At the initiative of the court;
2) After due notice to all persons interested
• Resignation:
1) whether appointed by the court or under a written instrument;
2) if it appears to the court proper to allow such resignation.
 Grounds for removal and resignation of a
trustee
• For removal:
– Removal appears essential in the interests of
petitioners
– Trustee is:
• Insane
• incapable of discharging his trust, or
• evidently unsuitable [Sec. 8, Rule 98]
• For resignation: He may resign his trust if it
appears to the court proper to allow such
resignation. [Sec. 8, Rule 98]
 Extent of authority of trustee
• The trustee appointed by the RTC shall have the same rights,
powers, and duties, and in whom the estate shall vest, as if he
had been appointed by the testator. [Sec. 2, Rule 98]
• In case of vacancy where the RTC has appointed a new trustee,
such new trustee shall have and exercise the same powers,
rights, and duties as if he had been originally appointed, and the
trust estate shall vest in him in like manner as it had vested or
would have vested, in the trustee in whose place he is
substituted; and the court may order such conveyance to be
made by the former trustee or his representatives, or by the
other remaining trustees, as may be necessary or proper to vest
the trust estate in the new trustee, either alone or Jointly with
the others. [Sec. 3, Rule 98]
 Escheat
• Escheat is a proceeding where the real and personal property of
a person deceased in Philippines, who dies without leaving any
will and without any legal heirs, becomes the property of the
State. [Municipal Council of San Pedro v. Colegio de San Jose
(1938)]
• Escheat is a proceeding, unlike that of succession or assignment,
whereby the state, by virtue of its sovereignty, steps in and
claims the real or personal property of a person who dies
intestate leaving no heir. Since escheat is one of the incidents of
sovereignty, the state may, and usually does, prescribe the
conditions and limits the time within which a claim to such
property may be made. [RP vs. CA & Solano (2002)]
 Nature of Escheat proceeding
• Escheat proceedings are actions in rem, whereby an action
is brought against the thing itself instead of the person.
• Thus, an action may be instituted and carried to judgment
without personal service upon the depositors or other
claimants. Jurisdiction is secured by the power of the court
over the res.
• Consequently, a judgment of escheat is conclusive upon
persons notified by advertisement, as publication is
considered a general and constructive notice to all persons
interested. [RCBC v. Hi-Tri Development Corp., G.R. No.
192413 (2012)]
 When to file
• If resident: RTC of the province where the deceased last
resided
• If non-resident: RTC of the place where his estate is
located. [Sec. 1, Rule 91]
• Actions for reversion or escheat of properties alienated in
violation of the Constitution or of any statute: In province
where land lies in whole or in part. [Sec. 5, Rule 91]
• Unclaimed balances: RTC of the province or city where the
bank, building, loan association or trust corporation is
located. [Sec. 3, Act No. 3936, as amended by PD 679]
 Requisites for filing of petition
• A petition for escheat of estate shall be proper
when the following requisites are present:
1) That a person died intestate;
2) He left no heirs or persons by law entitled to the
same; and
3) The deceased left properties in the Philippines.
[Sec. 1, Rule 91]
 Procedure
1) Solicitor General or his representative in behalf of the
Republic of Philippines files the petition [Sec. 1, Rule 91]
2) If petition is sufficient in form and substance, court shall make
an order fixing date and place for hearing, which shall not be
more than 6 months after entry of order [Sec. 2, Rule 91]
3) Court shall direct a copy of order to be published before the
hearing at least once a week for 6 consecutive weeks in some
newspaper of general circulation published in the province, as
the court shall deem best [Sec. 2, Rule 91]
4) Court shall hear the case and judge whether or not the estate
shall be escheated [Sec. 3, Rule 91]
 Procedure (cont.)
5) Property escheated will be assigned:
a) If personal property – to the municipality or city where the deceased
last resided;
b) If real property – to the municipalities or cities, respectively, in which
the same is situated;
c) If the deceased never resided in Philippines – whole estate may be
assigned to the respective municipalities or cities where the same is
located.
• Note: Such estate shall be for the benefit of public schools, and public
charitable institutions and centers in said municipalities or cities.
• Court may order, upon motion or motu propio, that a permanent trust be
established so that only the income from the property shall be used. [Sec.
3, Rule 91]
Effects of judgment in escheat proceedings

• A judgment in escheat proceedings when rendered

by a court of competent jurisdiction is conclusive
against all persons with actual or constructive
notice, but not against those who are not parties
or privies thereto. Absolute lack on the part of
petitioners of any dishonest intent to deprive the
appellee of any right, or in any way injure him,
constitutes due process of law, proper notice
having been observed. [RP v. CA & Solano (2002)]
 Remedy of respondent against petition;
period for filing a claim
• Remedies of heir if government initiates escheat
a) Participate in the proceeding; file a written opposition/comment
b) File a motion to dismiss
c) File a petition to annul judgment
• Period to file a claim to the estate: Within 5 years from date of
judgment; otherwise, barred forever.
• By whom: Devisee, legatee, heir, surviving spouse, or other person
entitled to such estate.
• Effect of claim by one who is entitled to the estate: Possession of and
title to the estate shall be given. If estate has already been sold, then the
city/municipality shall be accountable for the proceeds, less reasonable
charges for care of estate; but a claim not made within 5 years shall be
forever barred. [Sec. 4, Rule 91]
 Reversion
• Until otherwise provided by law, actions reversion or escheat of
properties alienated in violation of the Constitution or of any statute
shall be governed by this rule, except that the action shall be instituted
in the province where the land lies in whole or in part. [Sec. 5, Rule 91]
• A reversion proceeding is the manner through which the State seeks to
revert land to the mass of public domain and is the proper remedy when
public land is fraudulently awarded and disposed of in favor of private
individuals or corporations. Reversion is not automatic as the
government, through the OSG, must file an appropriate action. Since the
land originated from a grant by the government, its cancellation is thus a
matter between the grantor and the grantee. In other words, it is only
the State which may institute reversion proceedings. [Sps. Padilla v.
Salovino (2019)]
 Guardianship
• A guardianship is a trust relation of the most sacred
character, in which one person, called a "guardian" acts for
another called the "ward" whom the law regards as
incapable of managing his own affairs.
• A guardianship is designed to further the ward’s well-being,
not that of the guardian. It is intended to preserve the
ward’s property, as well as to render any assistance that the
ward may personally require. It has been stated that while
custody involves immediate care and control, guardianship
indicates not only those responsibilities, but those of one in
loco parentis as well. [Oropesa v. Oropesa (2012)]
 Venue
• The following rules regarding the jurisdiction and
venue of a guardianship must be observed:
1) Guardianship over incompetents: RTC of the place
where the incompetent resides. If a non-resident, with
the RTC where the incompetent's property or part
thereof is situated. [Sec. 1, Rule 92]
2) Guardianship over minors: Family Court of the place
where the minor resides. If a non-resident, with the
Family Court of the place where the minor's property or
part thereof is situated. [Sec. 3, Rule on Guardianship
over Minors]
 Meaning of word "incompetent"
• Under this rule, the word "incompetent" includes
persons suffering the penalty of civil interdiction or who
are hospitalized lepers, prodigals, deaf and dumb who
are unable to read and write, those who are of unsound
mind, even though they have lucid intervals, and
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, becoming thereby an easy
prey for deceit and exploitation. [Sec. 2, Rule 92]
 Appointment of guardians
• The following may file a petition for appointment:
1) In case of an incompetent: Any relative, friend, or other person on behalf of a
resident minor or incompetent who has no parent or lawful guardian. [Sec. 1,
Rule 93]
2) In case of a minor: Any relative or other person on behalf of a minor, or the
minor himself if fourteen years of age or over, may petition the Family Court 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 by the Secretary of Health in the case of an insane minor who
needs to be hospitalized. [Sec. 2, Rules on Guardianship of Minors]
Note: When the minor resides outside the Philippines but has property in the
Philippines, any relative or friend of such minor, or anyone interested in his
property, in expectancy or otherwise, may petition the Family Court for the
appointment of a guardian over the property. [Sec. 12, Rules on Guardianship of
Minors]
 Selling and Encumbering Property of Ward

• When the income of the estate under guardianship is insufficient to maintain

the ward and his family, or to maintain and educate the ward when a minor, or
when it appears that it is for the benefit of the ward that his real estate or
some part thereof be sold, or mortgaged or otherwise encumbered, and the
proceeds thereof put out at interest, or invested in some productive security,
or in the improvement or security or other real estate of the ward, the
guardian may present a verified petition to the court by which he was
appointed setting forth such facts, and praying that an order issue authorizing
the sale or encumbrance. [Sec. 1, Rule 95]
• The court may authorize and require the guardian to invest the proceeds of
sales or encumbrances, and any other of his ward's money in his hands, in real
estate or otherwise, as shall be for the best interest of all concerned, and may
make such other orders for the management, investment, and disposition of
the estate and effects, as circumstances may require. [Sec. 5, Rule 95]
 General powers and duties of guardians
• The powers and duties of a guardian are the following: (CaPS-MaPIA)
1) To have the Care and custody of the person of his ward, and the management of his
estate, or the management of the estate only, as the case may be [Sec. 1, Rule 96];
2) To Pay the ward's just debts out of his personal estate and the income of his real
estate, if sufficient; if not, then out of his real estate upon obtaining an order for the
sale or encumbrance thereof [Sec. 2, Rule 96];
3) To Settle accounts, collect debts, and appear in actions for ward [Sec. 3, Rule 96];
4) To Manage the estate of the ward frugally and without waste, and apply proceeds to
the maintenance of ward [Sec. 4, Rule 96];
5) To join in Partition after hearing [Sec. 5, Rule 96];
6) To render to the court an Inventory of the estate of his ward within three (3) months
after his appointment, and annually after such appointment an inventory and
account, which must be under oath [Sec. 7, Rule 96];
7) To render an Account to the court for settlement and allowance upon the expiration
of a year from the time of his appointment, and as often thereafter as may be
required [Sec. 8, Rule 96].
 General powers and duties of guardians
(cont.)
• That right to manage the ward's estate carries
with it the right to take possession thereof
and recover it from anyone who retains it, and
bring and defend such actions as may be
needful for this purpose. [Caniza v. CA (1997)]
 Power of the parent/legal guardian over the
property of the minor requires judicial power
• Under the law, a parent, acting merely as the legal (as
distinguished from judicial) administrator of the property of
his/her minor children, does not have the power to dispose of, or
alienate, the property of said children without judicial approval.
The powers and duties of the widow as legal administrator of her
minor children's property as provided in Rule 84 by the Rules of
Court entitled, "General Powers and Duties of Executors and
Administrators" are only powers of possession and management.
Her power to sell, mortgage, encumber or otherwise dispose of
the property of her minor children must proceed from the court,
as provided in Rule 89 which requires court authority and
approval. [Lindain v. Ila (1992)]
 Termination of guardianship
• If upon petition by the person declared incompetent, or his
guardian, relative, or friend, and after trial, it is judicially
determined that the person is no longer incompetent, his
competency shall be adjudged ant he guardianship shall
cease. [Sec. 1, Rule 97]
• The guardianship may also be terminated when it appears
that the guardianship is no longer necessary. [Sec. 3, Rule 97]
• The court may motu proprio or upon verified motion of any
person allowed to file a petition for guardianship may
terminate the guardianship on the ground that the ward has
come of age or has died. [Sec. 25, RGM]
 Adoption
• Adoption is a juridical act which creates
between two persons a relationship similar to
that which results from legitimate paternity
and filiation.
• Rule on Adoption (ROA) effective 2 August
2002 [A.M. No. 02-6-02-SC] – This rule covers
both domestic adoption and inter-country
adoption.
 Adoption (cont.)
• By definition, adoption is "the process of making a child,
whether related or not to the adopter, possess in general, the
rights accorded to a legitimate child." 
• Adoption has also been defined as the taking into one's family
of the child of another as son or daughter and heir and
conferring on it a title to the rights and privileges of such.
• The purpose of the proceeding for adoption is to effect this
new status of relationship between the child and its
adoptive parents, the change of name which frequently
accompanies adoption being more an incident than the object
of the proceeding. [Suzuki v. OSG (2020)]
 Nature of adoption
• It is a juridical act, a proceeding in rem which
creates a relationship that is similar to that which
results from legitimate paternity and filiation.
• The process of adoption therefore fixes a
status, viz., that of parent and child.  More
technically, it is an act by which relations of
paternity and affiliation are recognized as legally
existing between persons not so related by
nature. [Suzuki v. OSG (2020)]
 Laws governing domestic and inter-country
adoptions in the Philippines
• Republic Act 8552 known as Domestic Adoption Act of 1998
• Republic Act 8043 known as Inter-Country Adoption Act of 1995
• RA 8552 amended Articles 183 up to 193 of the Family Code and
the law governing for Filipino citizens adopting other Filipinos
(whether relatives or strangers) with certain exceptions.
• While RA 8043, governs the adoption of Filipinos by foreigners and
is being implemented by the Inter-Country Adoption Board (ICAB).
• Republic Act 8552, also known as the Domestic Adoption Act of
1998 encourages domestic adoption to preserve the child’s identity
and culture and only when this is not available shall inter-country
adoption be considered as a last resort.
 Distinguish domestic adoption from inter-
country adoption
• Domestic adoption governs the adoption of
Filipino children by Filipinos and/or aliens
residing in the Philippines for at least three (3)
continuous years, while inter-country
adoption pertains to the process of adopting a
Filipino child by a foreigner or a Filipino citizen
permanently residing abroad.
 Domestic adoption
• Domestic adoption – legal process of adopting
a Filipino child by Filipinos and/or aliens
residing in the Philippines for at least 3
consecutive years.
 Who may adopt
• The following may adopt: (FAG)
1) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of
good moral character, has not been convicted of any crime involving moral turpitude;
who is emotionally and psychologically capable of caring for children, at least sixteen
(16) years older than the adoptee, and who is in a position to support and care for his
children in keeping with the means of the family. The requirement of a 16-year
difference between the age of the adopter and adoptee may be waived when the
adopter is the biological parent of the adoptee or is the spouse of the adoptee’s
parent;
2) Any alien possessing the same qualifications as above-stated for Filipino nationals:
Provided, That his country has diplomatic relations with the Republic of the
Philippines, that he has been living in the Philippines for at least three (3) continuous
years prior to the filing of the petition for adoption and maintains such residence until
the adoption decree is entered, that he has been certified by his diplomatic or
consular office or any appropriate government agency to have the legal capacity to
adopt in his country, and that his government allows the adoptee to enter his country
as his adopted child. (CARD)
3) The guardian with respect to the ward after the termination of the guardianship and
clearance of his financial accountabilities. [Sec. 4, Rule on Adoption]
 When residency and certification
requirements for an alien may be waived
• The exceptions are as follows:
1) A former Filipino who seeks to adopt a relative
within the 4th degree of consanguinity or affinity;
or
2) One who is married to a Filipino, and the person
to be adopted is a relative of the Filipino within
the 4th degree. If the relative to be adopted is
other than the legitimate child of the Filipino,
the spouses must adopt jointly. [Sec. 4, Rule on
Adoption]
 Husband and wife shall jointly adopt;
exceptions
• General rule: Husband and wife shall jointly adopt.
• Exceptions: (LIS)
1) If one spouse seeks to adopt the Legitimate child of one
spouse by the other spouse; or
2) If one spouse seeks to adopt his own Illegitimate child:
Provided, however, That the other spouse has signified his
consent thereto; or
3) If the spouses are legally Separated from each other.
• In case husband and wife jointly adopt or one spouse adopts
the illegitimate child of the other, joint parental authority shall
be exercised by the spouses. [Sec. 4, Rule on Adoption]
 General requirements for a petition for
domestic adoption
• The petition shall be verified and specifically state
at the heading of the initiatory pleading whether
the petition contains an application for change of
name, rectification of simulated birth, voluntary or
involuntary commitment of children, or declaration
of child as abandoned, dependent or neglected.
• A certification of non-forum shopping shall be
included pursuant to Section 5, Rule 7 of the 1997
Rules of Civil Procedure. [Sec. 7, Rule on Adoption]
 Who may be adopted
• The following may be adopted:
a) Any person below eighteen (18) years of age who has been administratively
or judicially declared available for adoption;
b) The legitimate son/daughter of one spouse by the other spouse;
c) An illegitimate son/daughter by a qualified adopter to improve his/her
status to that of legitimacy;
d) A person of legal age if, prior to the adoption, said person has been
consistently considered and treated by the adopter(s) as his/her own child
since minority;
e) A child whose adoption has been previously rescinded; or
f) A child whose biological or adoptive parent(s) has died: Provided, That no
proceedings shall be initiated within six (6) months from the time of death
of said parent(s).
g) A child not otherwise disqualified by law or these rules.[Sec. 8, RA 8552]
 Effects of adoption
• Parental Authority – Except in cases where the biological parent is the
spouse of the adopter, all legal ties between the biological parent(s) and the
adoptee shall be severed and the same shall then be vested on the
adopter(s).
• Legitimacy – The adoptee shall be considered the legitimate son/daughter of
the adopter(s) for all intents and purposes and as such is entitled to all the
rights and obligations provided by law to legitimate sons/daughters born to
them without discrimination of any kind. To this end, the adoptee is entitled
to love, guidance, and support in keeping with the means of the family.
• Succession – In legal and intestate succession, the adopter(s) and the
adoptee shall have reciprocal rights of succession without distinction from
legitimate filiation. However, if the adoptee and his/her biological parent(s)
had left a will, the law on testamentary succession shall govern. [Art. V, RA
8551]
 Who may file rescission of adoption
• The petition shall be verified and filed by the adoptee
who is over eighteen (18) years of age, or with the
assistance of the Department, if he is a minor, or if he
is over eighteen (18) years of age but is
incapacitated, by his guardian or counsel. [Sec. 19,
Rule on Adoption]
Instances when adoption may be rescinded

• The adoption may be rescinded on any of the

following grounds committed by the adopter(s):
(MASA)
1) Repeated physical and verbal Maltreatment by the
adopter(s) despite having undergone counseling;
2) Attempt on the life of the adoptee;
3) Sexual assault or violence; or
4) Abandonment and failure to comply with parental
obligations. [Sec. 19, Rule on Adoption]
 When should the petition for rescission of
adoption be filed
• The adoptee, if incapacitated, must file the
petition for rescission or revocation of
adoption within five (5) years after he reaches
the age of majority, or if he was incompetent
at the time of the adoption, within five (5)
years after recovery from such incompetency.
[Sec. 21, Rule on Adoption]
Adopter not allowed to file for rescission of
adoption
• Adoption, being in the best interest of the
child, shall not be subject to rescission by the
adopter(s).
• However, the adopter(s) may disinherit the
adoptee for causes provided in Article 919 of
the Civil Code. [Sec. 19, Rule on Adoption]
 Effects of rescission of adoption
• Restoration of parental authority or legal custody if adoptee a minor or is
incapacitated. If the petition is granted, the parental authority of the adoptee’s
biological parent(s), if known, or the legal custody of the DSWD, shall be restored if the
adoptee is still a minor or incapacitated.  The reciprocal rights and obligations of the
adopter(s) and the adoptee to each other shall be extinguished.
• Restoration of original birth certificate. The court shall order the Civil Registrar to
cancel the amended certificate of birth of the adoptee and restore his/her original birth
certificate.
• Succession rights shall revert to its status prior to adoption, but only as of the date of
judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be
respected.
• It shall also order the adoptee to use the name stated in his original birth or foundling
certificate.
• All the foregoing effects of rescission of adoption shall be without prejudice to the
penalties imposable under the Penal Code if the criminal acts are properly proven. [Sec.
23, Rule on Adoption]
 Suzuki v. OSG (2020)
• The Supreme Court rejected the argument that an adoption was only valid if made
within the legal framework on adoption of either Republic Act No. 8043 (the Inter-
Country Adoption Act of 1995) or Republic Act No. 8552 (the Domestic Adoption Act
of 1998).
• The Supreme Court ruled that the availability of the Domestic Adoption Act as a
means to adopt a Filipino child should not automatically bar resort to recognition of
the adoption decree obtained under Japanese law. The rules on domestic adoption
should not be pitted against the recognition of a foreign adoption decree; instead, the
better course of action is to reconcile them and give effect to their respective
purposes.
• Suzuki affirmed for foreign adoption cases the established international legal principle
that final judgments of foreign courts of competent jurisdiction are reciprocally
respected and rendered efficacious subject to certain conditions that vary in different
countries.
• A foreign adoption decree can be recognized and given effect in the Philippines once it
is proven as a fact before a Philippine court. [G.R. No. 212302, September 2, 2020]
 Inter-country adoption
• Inter-country adoption refers to the socio-legal
process of adopting a Filipino child by a foreigner or a
Filipino citizen permanently residing abroad where
the petition is filed, the supervised trial custody is
undertaken, and the decree of adoption is issued
outside the Philippines. [Art. 1, Sec. 3(a), RA 8043]
• The rules on inter-country adoption apply to:
a) Adoption of Filipino children by foreign nationals; and
b) Adoption of Filipino children by Filipino citizens
permanently residing abroad. [Sec. 26, Rule on Adoption]
 When allowed
• Only a child legally available for domestic adoption
may be the subject of inter-country adoption. [Sec. 29,
ROA; Sec. 8, RA 8043]
• Only to be used as a last resort and in the best interest
of the child when the Inter-country Adoption Board
has exhausted all possibilities for adoption under the
Family Code. [Sec. 7, R.A. 8043]
• Family matching No child shall be matched to a foreign
adoptive family unless it is satisfactorily shown that the
child cannot be adopted locally. [Sec. 11, R.A. 8043]
 Where to file petition
• A verified petition to adopt a Filipino child
may be filed by a foreign national or Filipino
citizen permanently residing abroad with the
Family Court having jurisdiction over the place
where the child resides or may be found.
• It may be filed directly with the Inter-Country
Adoption Board. [Sec. 28, Rule on Adoption]
 Functions of the Regional Trial Court

• Receive the application

• Assess the qualification of the prospective
adopter
• Refer its findings, if favorable, to the Inter-
Country Adoption Board [De Leon 340, 2015]
 Who may adopt
• An alien or a Filipino citizen permanently residing abroad may file an application for inter-country
adoption of a Filipino child if he/she:
1) is at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at
the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of
such parent;
2) if married, his/her spouse must jointly file for the adoption;
3) has the capacity to act and assume all rights and responsibilities of parental authority under his national
laws, and has undergone the appropriate counseling from an accredited counselor in his/her country;
4) has not been convicted of a crime involving moral turpitude;
5) is eligible to adopt under his/her national law;
6) is in a position to provide the proper care and support and to give the necessary moral values and example to
all his children, including the child to be adopted;
7) agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the
Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act;
8) comes from a country with whom the Philippines has diplomatic relations and whose government maintains
a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and
9) possesses all the qualifications and none of the disqualifications provided herein and in other applicable
Philippine laws. [Sec. 9, RA 8043]
 "Best interest of the child" standard
• The standard to be observed is the “best interest of the minor” or
“best interest of the child” standard.
• The State shall take measures to ensure that inter-country
adoptions are allowed when the same shall prove beneficial to the
child's best interests, and shall serve and protect his/her
fundamental rights. [Sec. 2, RA 8043]
• The best interests of the minor refer to the totality of the
circumstances and conditions as are most congenial to the survival,
protection, and feelings of security of the minor encouraging to his
physical, psychological and emotional development. It also means
the least detrimental available alternative for safeguarding the
growth and development of the minor. [A.M. No. 03-04-04-SC]
 Writ of habeas corpus
• The writ of habeas corpus is an order of the court requiring the
person to whom it is issued to produce the person alleged to be
restrained of his liberty or whose rightful custody has been
withheld and to justify such person’s detention or custody. [Sec.
1, 5 and 6, Rule 102]
• Habeas corpus is an extraordinary, summary, and equitable writ,
consistent with the law's "zealous regard for personal liberty.“
• Its primary purpose "is to inquire into all manner of involuntary
restraint as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint which will
preclude freedom of action is sufficient.“ [Leonen; In re: Osorio v.
Navera (2018)]
 To what habeas corpus extends
• Except as otherwise expressly provided by law, the writ of habeas
corpus shall extend to all cases of illegal confinement or detention by
which any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled thereto. [Sec.
1, Rule 102]
• The primary purpose of the writ "is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to relieve a
person therefrom if such restraint is illegal." "Any restraint which will
preclude freedom of action is sufficient.“
• The nature of the restraint of liberty need not be related to any offense so
as to entitle a person to the efficient remedy of habeas corpus. It may be
availed of as a post-conviction remedy or when there is an alleged
violation of the liberty of abode. [Leonen; In re: Saliba v. Warden (2018)]
 To what habeas corpus extends (cont.)

• The writ may also be availed of (post-conviction)

where, as a consequence of a judicial
proceeding:
a) There has been a deprivation of a constitutional
right resulting in the restraint of a person,
b) The court had no jurisdiction to impose the
sentence, or
c) An excessive penalty has been imposed, as such
sentence is void as to such excess. [Feria v. CA
(2000)]
Writ of habeas corpus not available in case a
person is out on bail
• The law is well settled that a person out on
bail is not so restrained of his liberty as to be
entitled to a writ of habeas corpus. The
restraint of liberty which would justify the
issuance of the writ must be more than a
mere moral restraint; it must be actual or
physical. [Gonzales v. Viola (1935)]
 Leonen; In re: Osorio v. Navera (2018)
• Staff Sergeant Osorio, a ranking officer of the Armed Forces of the Philippines, filed
a Petition for Issuance of Writ of Habeas Corpus before the Court of Appeals. He
argued that he may not be charged with kidnapping and serious illegal detention
under Article 267 of the Revised Penal Code, considering that the felony penalizes
private individuals only. In rejecting this contention and affirming the Court of
Appeals' denial of his petition, this Court explained:
• SSgt. Osorio was charged with kidnapping, a crime punishable under Article 267 of
the Revised Penal Code. Applying Republic Act No. 7055, Section 1, the case shall
be tried by a civil court, specifically by the Regional Trial Court, which has
jurisdiction over the crime of kidnapping. The processes which the trial court
issued, therefore, were valid.
• Kidnapping should never be part of the functions of a soldier. It cannot be done in
a soldier's official capacity. If a soldier nonetheless proceeds allegedly on the
orders of a superior officer, the soldier shall be tried before the civil courts. The
remedy of habeas corpus, on the argument that only courts-martial have
jurisdiction over members of the Armed Forces, will not lie.
 Leonen; In re: Saliba v. Warden (2015)
• Habeas corpus is the proper remedy for a person deprived of liberty
due to mistaken identity. In such cases, the person is not under any
lawful process and is continuously being illegally detained.
• The SC allowed the issuance of the writ due to mistaken identity.
Instead of Butukan S. Malang, authorities arrested and detained one
Datukan Malang Salibo (Salibo) for his alleged participation in the
Maguindanao Massacre. Salibo, having proved that he was not the
accused Butukan S. Malang named in the arrest warrant, and that
he was in Mecca for the Hajj pilgrimage at the time of the incident,
was ordered released. To detain a person, when he has proven that
he is not the person accused of the crime, is a deprivation of liberty
without due process of law.
 Rubi v. Provincial Board of Mindoro (1919)

• The Provincial Board of Mindoro issued Resolution No. 25, Series

of 1917. The Resolution ordered the Mangyans removed from
their native habitat and compelled them to permanently settle
in an 800-hectare reservation in Tigbao. Under the Resolution,
Mangyans who refused to establish themselves in the Tigbao
reservation were imprisoned.
• An application for habeas corpus was filed before this court on
behalf of Rubi and all the other Mangyans being held in the
reservation. Since the application questioned the legality of
deprivation of liberty of Rubi and the other Mangyans, this court
issued a Writ of Habeas Corpus and ordered the Provincial Board
of Mindoro to make a Return of the Writ.
 Villavicencio v. Lukban (1919)
• "[T]o exterminate vice,"Mayor Justo Lukban of Manila ordered the brothels in
Manila closed. The female sex workers previously employed by these brothels
were rounded up and placed in ships bound for Davao. The women were expelled
from Manila and deported to Davao without their consent.
• On application by relatives and friends of some of the deported women, this court
issued a Writ of Habeas Corpus and ordered Mayor Justo Lukban, among others, to
make a Return of the Writ. Mayor Justo Lukban, however, failed to make a Return,
arguing that he did not have custody of the women.
• This court cited Mayor Justo Lukban in contempt of court for failure to make a
Return of the Writ. As to the legality of his acts, this court ruled that Mayor Justo
Lukban illegally deprived the women he had deported to Davao of their liberty,
specifically, of their privilege of domicile. It said that the women, "despite their
being in a sense lepers of society[,] are nevertheless not chattels but Philippine
citizens protected by the same constitutional guaranties as are other citizens[.]“
The women had the right "to change their domicile from Manila to another
locality."
 Who may file a petition for writ of habeas
corpus
• The party for whose relief it is intended, or by
some person on his behalf. [Sec. 3, Rule 102]
• In a habeas corpus proceeding, any person
may apply for the writ on behalf of the
aggrieved party. [Boac v. Cadapan (2011)]
 Who may grant the writ
• The writ of habeas corpus may be granted by the Supreme
Court, or any member thereof in the instances authorized
by law, and if so granted it shall be enforceable anywhere
in the Philippines, and may be made returnable before the
court or any member thereof, or before a Court of First
Instance, or any judge thereof for the hearing and decision
on the merits.
• It may also be granted by a Court of First Instance, or a
judge thereof, on any day and at any time, and returnable
before himself, enforceable only within his judicial district.
[Sec. 1, Rule 102]
 Who may grant the writ
• RTC or any judge thereof;
• CA or any member thereof in the instances
authorized by law;
• SC or any member thereof; or
• Sandiganbayan or any member thereof in aid
of its appellate jurisdiction.
 Where enforceable
• If granted by the SC or CA or any member of
such courts or Sandiganbayan in aid of its
appellate jurisdiction, it is enforceable
anywhere in the Philippines;
• If granted by the RTC or a judge thereof,
enforceable within the district.
When the writ must be granted and issued

• A court or judge authorized to grant the writ

must, when a petition therefor is presented
and it appears that the writ ought to issue,
grant the same forthwith, and immediately
thereupon the clerk of the court shall issue
the writ under the seal of the court; or in case
of emergency, the judge may issue the writ
under his own hand, and may depute any
officer or person to serve it. [Sec. 5, Rule 102]
 Contents of the petition
• The verified petition for writ of habeas corpus shall set forth:
a) That the person in whose behalf the application is made is
imprisoned or restrained on his liberty;
b) The officer or name of the person by whom he is so imprisoned or
restrained; or, if both are unknown or uncertain, such officer or
person may be described by an assumed appellation, and the
person who is served with the writ shall be deemed the person
intended;
c) The place where he is so imprisoned or restrained, if known;
d) A copy of the commitment or cause of detention of such person, if
it can be procured without impairing the efficiency of the remedy;
or, if the imprisonment or restraint is without any legal authority,
such fact shall appear. [Sec. 3, Rule 102]
 Contents of the return
• When the person to be produced is imprisoned or restrained by an officer, the
person who makes the return shall state therein, and in other cases the person
in whose custody the prisoner is found shall state, in writing to the court or
judge before whom the writ is returnable, plainly and unequivocably:
a) Whether he has or has not the party in his custody or power, or under restraint;
b) If he has the party in his custody or power, or under restraint, the authority and the
true and whole cause thereof, set forth at large, with a copy of the writ, order
execution, or other process, if any, upon which the party is held;
c) If the party is in his custody or power or is restrained by him, and is not produced,
particularly the nature and gravity of the sickness or infirmity of such party by reason
of which he cannot, without danger, be bought before the court or judge;
d) If he has had the party in his custody or power, or under restraint, and has transferred
such custody or restraint to another, particularly to whom, at what time, for what
cause, and by what authority such transfer was made. [Sec. 10, Rule 102]
Peremptory writ and preliminary citation

• Peremptory writ of habeas corpus, is one which

unconditionally commands the respondent to
have the body of the detained person before the
court at a time and place therein specified. The
order served in the case before us was merely a
preliminary citation or one which merely requires
the respondent to appear and show cause why
the peremptory writ should not be granted. [Lee
Yick Hon vs. Insular Collector Of Customs (1921)]
 When not proper or applicable
• Application for a writ of habeas corpus is not proper:
1) For asserting or vindicating the denial of the right to bail [Galvez v. CA
(1994)];
2) For correcting errors in the appreciation of facts or law [Sotto v.
Director of Prisons (1962)];
3) Where the trial court had jurisdiction over the cause, over the person
of the accuse, and to impose the penalty provided for by law, the
mistake committed by the trial court, if any, refers to the appreciation
of the facts and/or in the appreciation of the law; or
4) 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. [Rodriguez v. Bonifacio (2000)]
 When writ disallowed or 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 allowed.
• 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. [Sec. 4, Rule 102]
• Note: Such process may also be issued by a governmental
agency authorized to order a person’s confinement, such as the
Bureau of Immigration.
When writ disallowed or discharged (cont.)

• A writ of habeas corpus may no longer be issued if the person

allegedly deprived of liberty is restrained under a lawful process
or order of the court. The restraint then has become legal.
Therefore, the remedy of habeas corpus is rendered moot and
academic.
• If an accused is confined under a lawful process or order of the
court, the proper remedy is to pursue the orderly course of trial
and exhaust the usual remedies. This ordinary remedy is to file
a motion to quash the information or the warrant of arrest
based on one or more of the grounds enumerated in Rule 117,
Section 3 of the Rules of Court. [Leonen; Osorio v. Navera
(2018)]
Distinguish: writ of habeas corpus, writ of
amparo, and writ of habeas data
• As to rights involved:
– Writ of Habeas Corpus: Right to liberty of and the rightful
custody by the aggrieved party. [Sec. 1, Rule 102]
– Writ of Amparo: Right to life, liberty, and security of the
aggrieved party and covers only extralegal killings and enforced
disappearances. [Sec. 1, Rule on the Writ of Amparo]
– Writ of Habeas Data: Right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public
official or employee or of a private individual or entity engaged
in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the
aggrieved party. [Sec. 1, Rule on the Writ of Habeas Data]
Writ of habeas corpus in relation to custody
of minors
• A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the
Family Court. The writ shall be enforceable within its judicial region to which the Family Court
belongs.
• However, the petition may be filed with the regular court in the absence of the presiding judge
of the Family Court, provided, however, that the regular court shall refer the case to the Family
Court as soon as its presiding judge returns to duty.
• The petition may also be filed with the appropriate regular courts in places where there are no
Family Courts.
• The writ issued by the Family Court or the regular court shall be enforceable in the judicial
region where they belong.
• The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its
members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ
may be made returnable to a Family Court or to any regular court within the region where the
petitioner resides or where the minor may be found for hearing and decision on the merits.
• Upon return of the writ, the court shall decide the issue on custody of minors. The appellate
court, or the member thereof, issuing the writ shall be furnished a copy of the decision. [Sec.
20, A.M. No. 03-04-04-SC]
Writ of habeas corpus in relation to custody
of minors (cont.)
• In view of the afore-quoted provision, it is indubitable that the
filing of a petition for the issuance of a writ of habeas corpus
before a family court in any of the cities enumerated is proper
as long as the writ is sought to be enforced within the National
Capital Judicial Region, as here.
• In the case at bar, respondent filed the petition before the
family court of Caloocan City. Since Caloocan City and Quezon
City both belong to the same judicial region, the writ issued by
the RTC-Caloocan can still be implemented in Quezon City.
Whether petitioner resides in the former or the latter is
immaterial in view of the above rule. [Cada v. Cada-Deapera
(2014)]
Writ of habeas corpus in relation to custody
of minors (cont.)
• In cases involving minors, the purpose of a petition for habeas corpus is
not limited to the production of the child before the court. The main
purpose of the petition for habeas corpus is to determine who has the
rightful custody over the child.
• In Tijing v. Court of Appeals, the Court held that:
– The writ of habeas corpus extends 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. Thus, it is the proper
legal remedy to enable parents to regain the custody of a minor child even if the
latter be in the custody of a third person of his own free will. It may even be said
that in custody cases involving minors, the question of illegal and involuntary
restraint of liberty is not the underlying rationale for the availability of the writ
as a remedy. Rather, it is prosecuted for the purpose of determining the right of
custody over a child. [Bagtas v. Santos (2009)]
Writ of habeas corpus in relation to custody
of minors (cont.)
• It is settled that habeas corpus may be resorted to in cases where
"the rightful custody of any person is withheld from the person
entitled thereto.“
• In custody cases involving minors, the writ of habeas corpus is
prosecuted for the purpose of determining the right of custody
over a child. The grant of the writ depends on the concurrence of
the following requisites:
1) that the petitioner has the right of custody over the minor;
2) that the rightful custody of the minor is being withheld from the
petitioner by the respondents; and
3) that it is to the best interest of the minor concerned to be in the custody
of petitioner and not that of the respondents. [Masbate v. Relucio
(2018)]
 Rule on the custody of minor under seven
years of age
• Article 213 of the Family Code provides for the so-called tender-age
presumption, stating that “No child under seven (7) years of age shall be
separated from the mother unless the court finds compelling reasons to order
otherwise.“
• Rationale: The general rule is recommended in order to avoid many a tragedy
where a mother has seen her baby torn away from her. No man can sound
the deep sorrows of a mother who is deprived of her child of tender age. The
exception allowed by the rule has to be for "compelling reasons" for the good
of the child; those cases must indeed be rare, if the mother's heart is not to
be unduly hurt. 
• According to jurisprudence, the following instances may constitute "compelling reasons"
to wrest away custody from a mother over her child although under seven (7) years of
age: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug
addiction, maltreatment of the child, insanity or affliction with a communicable disease.
[Masbate v. Relucio (2018)]
 Habeas corpus in relation Post-Conviction
DNA Testing Results
• Sec. 10 of the DNA Evidence Rule (A.M. No. 06-11-5-SC, October 15,
2007) provides for the rule on the post- conviction DNA Testing results and
the remedy if favorable. It states that:
– “SEC. 10. Post-conviction DNA Testing. Remedy if the Results Are
Favorable to the Convict.— The convict or the prosecution may file a
petition for a writ of habeas corpus in the court of origin if the results
of the post-conviction DNA testing are favorable to the convict. In case
the court, after due hearing, finds the petition to be meritorious, it
shall reverse or modify the judgment of conviction and order the
release of the convict, unless continued detention is justified for a
lawful cause. A similar petition may be filed either in the Court of
Appeals or the Supreme Court, or with any member of said courts,
which may conduct a hearing thereon or remand the petition to the
court of origin and issue the appropriate orders.”
 Writ of amparo
• The petition for a writ of amparo is a remedy available to any person
whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or
of a private individual or entity.
• The writ shall cover extralegal killings and enforced disappearances or
threats thereof. [Sec. 1, Rule on the Writ of Amparo]
• A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated
to arrest the rampant extralegal killings and enforced disappearances in
the country. Its purpose is to provide an expeditious and effective relief
"to any person whose right to life, liberty and security is violated or
threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity." [Navia v. Pardico
(2012)]
 Nature of the writ
• A writ of Amparo is a special proceeding. It is a remedy by which a party
seeks to establish a status, a right or particular fact. It is not a civil nor a
criminal action, hence, the application of the Revised Rule on Summary
Procedure is seriously misplaced. [De Lima v. Gatdula (2013)]
• The writ of amparo is an independent and summary remedy that
provides rapid judicial relief to protect the people’s right to life, liberty
and security. Having been originally intended as a response to the
alarming cases of extrajudicial killings and enforced disappearances in the
country, it serves both preventive and curative roles to address the said
human rights violations. It is preventive in that it breaks the expectation
of impunity in the commission of these offenses, and it is curative in that
it facilitates the subsequent punishment of perpetrators by inevitably
leading to subsequent investigation and action. [Lozada v. Arroyo (2012)]
 Nature of the writ (cont.)
• Writ of Amparo is swift, it is resolved through summary
proceedings and the availability of appropriate interim
and permanent reliefs under the Amparo Rule, this hybrid
writ of the common law and civil law traditions - borne
out of the Latin American and Philippine experience of
human rights abuses - offers a better remedy to extralegal
killings and enforced disappearances and threats thereof.
• The remedy provides rapid judicial relief as it partakes of
a summary proceeding that requires only substantial
evidence. [Secretary of Defense v. Manalo (2008)]
 Coverage
• As the Amparo Rule was intended to address the intractable problem of
"extralegal killings" and "enforced disappearances," its coverage, in its
present form, is confined to these two instances or to threats thereof.
• Extralegal killings are "killings committed without due process of law,
i.e., without legal safeguards or judicial proceedings.“
• Enforced disappearances are "attended by the following
characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting
with the direct or indirect acquiescence of the government; the refusal
of the State to disclose the fate or whereabouts of the person
concerned or a refusal to acknowledge the deprivation of liberty which
places such persons outside the protection of law." [Secretary of
Defense v. Manalo (2008)]
 Coverage (cont.)
• As it stands, the writ of amparo is confined only to cases
of extrajudicial killings and enforced disappearances, or
to threats thereof. Considering that this remedy is aimed
at addressing these serious violations of or threats to the
right to life, liberty and security, it cannot be issued on
amorphous and uncertain grounds, or in cases where the
alleged threat has ceased and is no longer imminent or
continuing. Instead, it must be granted judiciously so as
not to dilute the extraordinary and remedial character of
the writ. [Lozada v. Arroyo (2012)]
 Enforced disappearance
• "Enforced or involuntary disappearance of persons" means the arrest, detention,
or abduction of persons by, or with the authorization, support or acquiescence of,
a State or a political organization followed by a refusal to acknowledge that
deprivation of freedom or to give information on the fate or whereabouts of those
persons, with the intention of removing from the protection of the law for a
prolonged period of time.  [Sec. 3(g), RA 9851]
• From the statutory definition of enforced disappearance, thus, we can derive the
following elements that constitute it:
a) that there be an arrest, detention, abduction or any form of deprivation of liberty;
b) that it be carried out by, or with the authorization, support or acquiescence of, the
State or a political organization;
c) that it be followed by the State or political organization’s refusal to acknowledge or
give information on the fate or whereabouts of the person subject of the amparo
petition; and,
d) that the intention for such refusal is to remove subject person from the protection of
the law for a prolonged period of time. [Navia v. Pardico (2012)]
 In re: Lucena v. Elago (2020)
• On the writ of amparo:
– Petitioners' plea for the issuance of a writ of amparo is not proper.
The remedy of amparo, in its present formulation, is confined
merely to instances of "extralegal killings" or "enforced
disappearances" and to threats thereof.
– Here, there is not much issue that AJ's situation does not qualify
either as an actual or threatened enforced disappearance or
extralegal killing.
– AJ is not missing.  Her whereabouts are determinable.  By all
accounts, she is staying with the Anakbayan and its officers which,
at least insofar as AJ's case is concerned, are not agents or
organizations acting on behalf of the State. Indeed, against these
facts, petitioners' invocation of the remedy of cannot pass.
 In re: Lucena v. Elago (2020) (cont.)
• On the writ of habeas corpus:
– The Rules of Court envisions the writ of habeas corpus as a remedy applicable
to cases of illegal confinement or detention where a person is deprived of his
or her liberty, or where the rightful custody of any person is withheld from
the person entitled thereto.
– In this case, however, it did not at all appear that AJ had been deprived of her
liberty or that petitioners had been excluded from their rightful custody over
the person of AJ.
– As she has already attained the age of majority, AJ — at least in the eyes of the
State -has earned the right to make independent choices with respect to the
places where she wants to stay, as well as to the persons whose company she
wants to keep. Such choices, so long as they do not violate any law or any
other persons' rights, has to be respected and let alone, lest we trample upon
AJ's personal liberty — the very freedom supposed to be protected by the
writs of amparo and habeas corpus. 
 Writ of amparo not available in case of
demolition of dwelling of squatters by final
judgment
• The threatened demolition of a dwelling by
virtue of a final judgment of the court, which
in this case was affirmed with finality, is not
included among the enumeration of rights as
stated in the above-quoted Section 1 for
which the remedy of a writ of amparo is made
available. [Canlas v. Napico (2008)]
 Differences between amparo and search
warrant
• The writ applies to extralegal/extrajudicial
killings and enforced disappearances or
threats thereof while a search warrant is an
order in writing issued in the name of the
People of the Philippines, signed by a judge
and directed to a peace officer, commanding
him to search for personal property described
therein and bring it before the court.
[Secretary of Defense v. Manalo (2008)]
 Who may file
• The petition may be filed by the aggrieved party or by any qualified
person or entity in the following order:
a) Any member of the immediate family, namely: the spouse, children and
parents of the aggrieved party;
b) Any ascendant, descendant or collateral relative of the aggrieved party within
the fourth civil degree of consanguinity or affinity, in default of those
mentioned in the preceding paragraph; or
c) Any concerned citizen, organization, association or institution, if there is no
known member of the immediate family or relative of the aggrieved party.
• The filing of a petition by the aggrieved party suspends the right of all
other authorized parties to file similar petitions. Likewise, the filing of
the petition by an authorized party on behalf of the aggrieved party
suspends the right of all others, observing the order established herein.
[Sec. 2, Rule on the Writ of Amparo]
 Order of succession must be followed;
mandatory and exclusive
• The exclusive and successive order mandated
by the above-quoted provision must be
followed. The order of priority is not without
reason—"to prevent the indiscriminate and
groundless filing of petitions for Amparo
which may even prejudice the right to life,
liberty or security of the aggrieved party."
[Boac v. Cadapan (2011)]
 Where to file
• The petition may be filed on any day and at any
time with the Regional Trial Court of the place
where the threat, act or omission was committed
or any of its elements occurred, or with the
Sandiganbayan, the Court of Appeals, the
Supreme Court, or any justice of such courts.
• The writ shall be enforceable anywhere in the
Philippines. [Sec. 3, Rule on the Writ of Amparo]
 Issuance of the Writ
• Upon the filing of the petition, the court, justice or judge
shall immediately order the issuance of the writ if on its
face it ought to issue. The clerk of court shall issue the
writ under the seal of the court; or in case of urgent
necessity, the justice or the judge may issue the writ
under his or her own hand, and may deputize any officer
or person to serve it.
• The writ shall also set the date and time for summary
hearing of the petition which shall not be later than seven
(7) days from the date of its issuance. [Sec. 6, Rule on the
Writ of Amparo]
 Contents of petition
• The petition shall be signed and verified and shall allege the following:
a) The personal circumstances of the petitioner;
b) The name and personal circumstances of the respondent responsible for the threat, act or
omission, or, if the name is unknown or uncertain, the respondent may be described by an
assumed appellation;
c) The right to life, liberty and security of the aggrieved party violated or threatened with
violation by an unlawful act or omission of the respondent, and how such threat or
violation is committed with the attendant circumstances detailed in supporting affidavits;
d) The investigation conducted, if any, specifying the names, personal circumstances, and
addresses of the investigating authority or individuals, as well as the manner and conduct
of the investigation, together with any report;
e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of
the aggrieved party and the identity of the person responsible for the threat, act or
omission; and
f) The relief prayed for.
• The petition may include a general prayer for other just and equitable reliefs. [Sec. 5, Rule on
the Writ of Amparo]
Government involvement; essential element
• In an amparo petition, proof of disappearance alone is not enough. It is likewise
essential to establish that such disappearance was carried out with the direct
or indirect authorization, support or acquiescence of the government.
• This indispensable element of State participation is not present in this case. The
petition does not contain any allegation of State complicity, and none of the
evidence presented tend to show that the government or any of its agents
orchestrated Ben’s disappearance. In fact, none of its agents, officials, or
employees were impleaded or implicated in Virginia’s amparo petition whether
as responsible or accountable persons.
• Thus, in the absence of an allegation or proof that the government or its agents
had a hand in Ben’s disappearance or that they failed to exercise extraordinary
diligence in investigating his case, the Court will definitely not hold the
government or its agents either as responsible or accountable persons. [Navia v.
Pardico (2012)]
Government involvement; essential element
(cont.)
• We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may
lie against a private individual or entity. But even if the person sought to be held
accountable or responsible in an amparo petition is a private individual or entity,
still, government involvement in the disappearance remains an indispensable
element.
• Here, petitioners are mere security guards at Grand Royale Subdivision in Brgy.
Lugam, Malolos City and their principal, the Asian Land, is a private entity. They
do not work for the government and nothing has been presented that would link
or connect them to some covert police, military or governmental operation.
• As discussed above, to fall within the ambit of A.M. No. 07-9-12-SC in relation to
RA No. 9851, the disappearance must be attended by some governmental
involvement. This hallmark of State participation differentiates an enforced
disappearance case from an ordinary case of a missing person. [Navia v. Pardico
(2012)]
 Petitioner must prove the existence of a
continuing threat
• In cases where the violation of the right to life, liberty or security has
already ceased, it is necessary for the petitioner in an amparo action to
prove the existence of a continuing threat. Thus, this Court held in its
Resolution in Razon v. Tagitis:
– Manalo is different from Tagitis in terms of their factual settings, as enforced
disappearance was no longer a problem in that case. The enforced
disappearance of the brothers Raymond and Reynaldo Manalo effectively ended
when they escaped from captivity and surfaced, while Tagitis is still nowhere to
be found and remains missing more than two years after his reported
disappearance. An Amparo situation subsisted in Manalo, however, because of
the continuing threat to the brothers’ right to security; the brothers claimed that
since the persons responsible for their enforced disappearance were still at large
and had not been held accountable, the former were still under the threat of
being once again abducted, kept captive or even killed, which threat constituted
a direct violation of their right to security of person. [Lozada v. Arroyo (2012)]
 Threat must be actual, not merely
supposition
• The alleged threat to herein petitioners' rights to life, liberty
and security must be actual, and not merely one of supposition
or with the likelihood of happening.  And, when the evidence
adduced establishes the threat to be existent, as opposed to a
potential one, then, it goes without saying that the threshold
requirement of substantial evidence in amparo proceedings has
also been met. 
• Thus, in the words of Justice Brion, in the context of
the Amparo rule, only actual threats, as may be established
from all the facts and circumstances of the case, can qualify as
a violation that may be addressed under the Rule on the Writ
of Amparo. [In re: Ladaga v. Mapagu (2012)]
Issuance of writ cannot be justified in the
absence of continuing restraint on a
person’s liberty
• As previously discussed, there is no basis to grant Lozada the
privilege of the writ of amparo, considering that the illegal
restraint alleged in this case had already ceased and there is no
imminent or continuing restriction on his liberty.
• In Castillo v. Cruz, this Court held as follows: Although
respondents’ release from confinement does not necessarily
hinder supplication for the writ of amparo, absent any evidence
or even an allegation in the petition that there is undue and
continuing restraint on their liberty, and/or that there exists
threat or intimidation that destroys the efficacy of their right to
be secure in their persons, the issuance of the writ cannot be
justified. [Lozada v. Arroyo (2012)]
 Contents of return
• Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return
together with supporting affidavits which shall, among other things, contain the following:
a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty
and security of the aggrieved party, through any act or omission;
b) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and
the person or persons responsible for the threat, act or omission;
c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the
aggrieved party; and
d) If the respondent is a public official or employee, the return shall further state the actions that have been or will
still be taken:
i. to verify the identity of the aggrieved party;
ii. to recover and preserve evidence related to the death or disappearance of the person identified in the petition
which may aid in the prosecution of the person or persons responsible;
iii. to identify witnesses and obtain statements from them concerning the death or disappearance;
iv. to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that
may have brought about the death or disappearance;
v. to identify and apprehend the person or persons involved in the death or disappearance; and
vi. to bring the suspected offenders before a competent court.
• The return shall also state other matters relevant to the investigation, its resolution and the prosecution of
the case.
• A general denial of the allegations in the petition shall not be allowed. [Sec. 9, Rule on the Writ of Amparo]
 Effects of failure to file return
• In case the respondent fails to file a return,
the court, justice or judge shall proceed to
hear the petition ex parte. [Sec. 12, Rule on
the Writ of Amparo]
 The return is the proper responsive pleading;
memorandum is a prohibited pleading
• First the insistence on filing an Answer was inappropriate. It is the Return that
serves as the responsive pleading for petitions for the issuance of Writs of Amparo.
The requirement to file an Answer is contrary to the intention of the Court to
provide a speedy remedy to those whose right to life, liberty and security are
violated or are threatened to be violated. In utter disregard of the Rule on the Writ
of Amparo, Judge Pampilo insisted on issuing summons and requiring an Answer. x
xx
• The Return in Amparo cases allows the respondents to frame the issues subject to
a hearing. Hence, it should be done prior to the hearing, not after. A
memorandum, on the other hand, is a synthesis of the claims of the party litigants
and is a final pleading usually required before the case is submitted for decision.
One cannot substitute for the other since these submissions have different
functions in facilitating the suit.
• More importantly, a memorandum is a prohibited pleading under the Rule on the
writ of Amparo. [De Lima v. Gatdula (2013)]
 Omnibus waiver rule
• Defenses not Pleaded Deemed Waived – All
defenses shall be raised in the return,
otherwise, they shall be deemed waived. [Sec.
10, Rule on Writ of Amparo]
• The respondent must plead all his defenses in
the return. Failure to do so shall operate as a
waiver of such defense not therein pleaded.
 Procedure for hearing
• Summary Hearing — The hearing on the petition
shall be summary. However, the court, justice or
judge may call for a preliminary conference to
simplify the issues and determine the possibility of
obtaining stipulations and admissions from the
parties.
• The hearing shall be from day to day until
completed and given the same priority as petitions
for habeas corpus. [Sec. 13, Rule on Writ of Amparo]
 Institution of separate action
• This Rule on Writ of Amparo shall not preclude
the filing of separate criminal, civil or
administrative actions. [Sec. 21, Rule on Writ
of Amparo]
Effect of filing of a criminal action
• When a criminal action has been commenced,
no separate petition for the writ shall be filed.
The reliefs under the writ shall be available by
motion in the criminal case.
• The procedure under this Rule shall govern
the disposition of the reliefs available under
the writ of amparo. [Sec. 22, Rule on Writ of
Amparo]
 Consolidation
• When a criminal action is filed subsequent to the filing
of a petition for the writ, the latter shall be
consolidated with the criminal action.
• When a criminal action and a separate civil action are
filed subsequent to a petition for a writ of amparo, the
latter shall be consolidated with the criminal action.
• After consolidation, the procedure under this Rule shall
continue to apply to the disposition of the reliefs in the
petition. [Sec. 23, Rule on Writ of Amparo]
 Interim reliefs available to petitioner and
respondent
• Upon filing of the petition or at anytime before final judgment, the court,
justice or judge may grant any of the following reliefs:
a) Temporary Protection Order
b) Inspection Order
c) Production Order
d) Witness Protection Order [Sec. 14, Rule on Writ of Amparo]
• Upon verified motion of the respondent and after due hearing, the court,
justice or judge may issue an inspection order or production order under
paragraphs (b) and (c) of the preceding section.
– A motion for inspection order under this section shall be supported by
affidavits or testimonies of witnesses having personal knowledge of
the defenses of the respondent. [Sec. 15, Rule on Writ of Amparo]
 Standard of diligence required
• The respondent who is a private individual or entity must
prove that ordinary diligence as required by applicable laws,
rules and regulations was observed in the performance of
duty.
• The respondent who is a public official or employee must
prove that extraordinary diligence as required by applicable
laws, rules and regulations was observed in the performance
of duty.
• The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed
to evade responsibility or liability. [Sec. 17, Rule on Writ of
Amparo]
 Temporary Protection Order
• The court, justice or judge, upon motion or motu proprio, may order that
the petitioner or the aggrieved party and any member of the immediate
family be protected in a government agency or by an accredited person or
private institution capable of keeping and securing their safety. If the
petitioner is an organization, association or institution referred to in
Section 3(c) of this Rule, the protection may be extended to the officers
involved.
• The Supreme Court shall accredit the persons and private institutions that
shall extend temporary protection to the petitioner or the aggrieved party
and any member of the immediate family, in accordance with guidelines
which it shall issue.
• The accredited persons and private institutions shall comply with the rules
and conditions that may be imposed by the court, justice or judge. [Sec.
14(a), Rule on Writ of Amparo]
 Inspection Order
• The court, justice or judge, upon verified motion and after due hearing, may order any person
in possession or control of a designated land or other property, to permit entry for the
purpose of inspecting, measuring, surveying, or photographing the property or any relevant
object or operation thereon.
• The motion shall state in detail the place or places to be inspected. It shall be supported by
affidavits or testimonies of witnesses having personal knowledge of the enforced
disappearance or whereabouts of the aggrieved party.
• If the motion is opposed on the ground of national security or of the privileged nature of the
information, the court, justice or judge may conduct a hearing in chambers to determine the
merit of the opposition.
• The movant must show that the inspection order is necessary to establish the right of the
aggrieved party alleged to be threatened or violated.
• The inspection order shall specify the person or persons authorized to make the inspection
and the date, time, place and manner of making the inspection and may prescribe other
conditions to protect the constitutional rights of all parties. The order shall expire five (5)
days after the date of its issuance, unless extended for justifiable reasons. [Sec. 14(b), Rule on
Writ of Amparo]
 Production Order
• The court, justice or judge, upon verified motion and after due hearing,
may order any person in possession, custody or control of any designated
documents, papers, books, accounts, letters, photographs, objects or
tangible things, or objects in digitized or electronic form, which constitute
or contain evidence relevant to the petition or the return, to produce and
permit their inspection, copying or photographing by or on behalf of the
movant.
• The motion may be opposed on the ground of national security or of the
privileged nature of the information, in which case the court, justice or
judge may conduct a hearing in chambers to determine the merit of the
opposition.
• The court, justice or judge shall prescribe other conditions to protect the
constitutional rights of all the parties. [Sec. 14(c), Rule on Writ of Amparo]
 Witness Protection Order
• The court, justice or judge, upon motion or motu
proprio, may refer the witnesses to the Department
of Justice for admission to the Witness Protection,
Security and Benefit Program, pursuant to Republic
Act No. 6981.
• The court, justice or judge may also refer the
witnesses to other government agencies, or to
accredited persons or private institutions capable of
keeping and securing their safety. [Sec. 14(d), Rule on
Writ of Amparo]
Quantum of proof in application for issuance
of writ of amparo (cont.)
• The parties shall establish their claims by substantial evidence.
[Sec. 17, Rule on Writ of Amparo]
• Substantial evidence is that amount of relevant evidence which a
reasonable mind might accept as adequate to support a
conclusion.  It is more than a mere imputation of wrongdoing or
violation that would warrant a finding of liability against the person
charged.
• The summary nature of amparo proceedings, as well as, the use of
substantial evidence as standard of proof shows the intent of the
framers of the rule to address situations of enforced disappearance
and extrajudicial killings, or threats thereof, with what is akin to
administrative proceedings. [In re: Ladaga v. Mapagu (2012)]
Quantum of proof in application for issuance
of writ of amparo (cont.)
• In Razon, Jr. v. Tagitis, the Court laid down a new standard of relaxed
admissibility of evidence to enable amparo petitioners to meet the
required amount of proof showing the State's direct or indirect
involvement in the purported violations and found it a fair and proper rule
in amparo cases "to consider all the pieces of evidence adduced in their
totality" and "to consider any evidence otherwise inadmissible under
our usual rules to be admissible if it is consistent with the admissible
evidence adduced.“
• Put simply, evidence is not to be rejected outright because it is
inadmissible under the rules for as long as it satisfies "the most basic test
of reason i.e., relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence.“[In re: Ladaga v.
Mapagu (2012)]
 Relaxed evidentiary rule on the
admissibility of evidence in amparo cases
• The fair and proper rule is to consider all the pieces of
evidence adduced in their totality, and to consider any
evidence otherwise inadmissible under our usual rules to
be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules
to the most basic test of reason – i.e., to the relevance of
the evidence to the issue at hand and its consistency
with all other pieces of adduced evidence.
• Thus, even hearsay evidence can be admitted if it
satisfies this basic minimum test. [Razon v. Tagitis (2009)]
 Writ of habeas data
• The writ of habeas data is a remedy available to any
person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act
or omission of a public official or employee, or of a
private individual or entity engaged in the gathering,
collecting or storing of data or information regarding
the person, family, home and correspondence of the
aggrieved party. [Sec. 1, Rule on WHD]
 Writ of habeas data (cont.)
• A.M. No. 08-1-16-SC, or the Rule on the Writ of Habeas
Data (Habeas Data Rule), was conceived as a response,
given the lack of effective and available remedies, to
address the extraordinary rise in the number of killings
and enforced disappearances.
• It was conceptualized as a judicial remedy enforcing the
right to privacy, most especially the right to informational
privacy of individuals, which is defined as "the right to
control the collection, maintenance, use, and
dissemination of data about oneself.“ [Lee v. Ilagan
(2014)]
 Nature and purpose of the writ
• The writ of habeas data is an independent and summary remedy
designed to protect the image, privacy, honor, information, and
freedom of information of an individual, and to provide a forum
to enforce one’s right to the truth and to informational privacy.
• It seeks to protect a person’s right to control information
regarding oneself, particularly in instances in which such
information is being collected through unlawful means in order to
achieve unlawful ends.
• It must be emphasized that 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. [Gamboa v. Chan (2012)]
 Scope of writ
• As defined in Section 1 of the Habeas Data Rule, the writ of habeas
data now stands as "a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful
act or omission of a public official or employee, or of a private individual
or entity engaged in the gathering, collecting or storing of data or
information regarding the person, family, home, and correspondence of
the aggrieved party.“[Lee v. Ilagan (2014)]
• The habeas data rule, in general, is designed to protect by means of
judicial complaint the image, privacy, honor, information, and freedom of
information of an individual. It is meant to provide a forum to enforce
one’s right to the truth and to informational privacy, thus safeguarding
the constitutional guarantees of a person’s right to life, liberty and
security against abuse in this age of information technology. [Meralco v.
Lim (2010)]
 The writ of habeas data is not only confined to cases
of extralegal killings and enforced disappearances
• Habeas data, to stress, was designed "to safeguard individual freedom
from abuse in the information age.“
• As such, it is erroneous to limit its applicability to extralegal killings and
enforced disappearances only. In fact, the annotations to the Rule
preparedby the Committee on the Revision of the Rules of Court, after
explaining that the Writ of Habeas Data complements the Writ of
Amparo, pointed out that:
– The writ of habeas data, however, can be availed of as an independent remedy to
enforce one’s right to privacy, more specifically the right to informational privacy.
The remedies against the violation of such right can include the updating,
rectification, suppression or destruction of the database or information or files in
possession or in control of respondents. Clearly then, the privilege of the Writ of
Habeas Data may also be availed of in cases outside of extralegal killings and
enforced disappearances. [Vivares v. St. Theresa’s College (2014)]
 Availability of writ
• The writ, however, will not issue on the basis merely of an
alleged unauthorized access to information about a person.
• Availment of the writ requires the existence of a nexus
between the right to privacy on the one hand, and the
right to life, liberty or security on the other.
• Thus, the existence of a person’s right to informational
privacy and a 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 are indispensable
before the privilege of the writ may be extended. [Vivares
v. St. Theresa’s College (2014)]
 Meaning of "engaged" in the gathering,
collecting or storing of data or information
• The provision, when taken in its proper context, as a whole, irresistibly conveys the
idea that habeas data is a protection against unlawful acts or omissions of public
officials and of private individuals or entities engaged in gathering, collecting, or
storing data about the aggrieved party and his or her correspondences, or about
his or her family. Such individual or entity need not be in the business of
collecting or storing data.
• To "engage" in something is different from undertaking a business endeavour. To
"engage" means "to do or take part in something.“ It does not necessarily mean
that the activity must be done in pursuit of a business. What matters is that the
person or entity must be gathering, collecting or storing said data or information
about the aggrieved party or his or her family. Whether such undertaking carries
the element of regularity, as when one pursues a business, and is in the nature of a
personal endeavour, for any other reason or even for no reason at all, is immaterial
and such will not prevent the writ from getting to said person or entity. [Vivares v.
St. Theresa’s College (2014)]
 Meralco v. Lim (2010)
• May an employee invoke the remedies available under such writ where an
employer decides to transfer her workplace on the basis of copies of an
anonymous letter posted therein ─ imputing to her disloyalty to the
company and calling for her to leave, which imputation it investigated but
fails to inform her of the details thereof?
• The writs of amparo and habeas data will NOT issue to protect
purely property or commercial concerns nor when the grounds invoked in
support of the petitions therefor are vague or doubtful. Employment
constitutes a property right under the context of the due process clause of
the Constitution. It is evident that respondent’s reservations on the real
reasons for her transfer - a legitimate concern respecting the terms and
conditions of one’s employment - are what prompted her to adopt the
extraordinary remedy of habeas data. Jurisdiction over such concerns is
inarguably lodged by law with the NLRC and the Labor Arbiters.
 Meralco v. Lim (2010) (cont.)
• In another vein, there is no showing from the facts presented that
petitioners committed any unjustifiable or unlawful violation of
respondent’s right to privacy vis-a-vis the right to life, liberty or
security. To argue that petitioners’ refusal to disclose the contents of
reports allegedly received on the threats to respondent’s safety
amounts to a violation of her right to privacy is at best speculative.
Respondent in fact trivializes these threats and accusations from
unknown individuals in her earlier-quoted portion of her July 10,
2008 letter as "highly suspicious, doubtful or are just mere jokes if
they existed at all.“ And she even suspects that her transfer to
another place of work "betray[s] the real intent of management]"
and could be a "punitive move." Her posture unwittingly concedes
that the issue is labor-related.
 Lee v. Ilagan (2014)
• In this case, the Court finds that Ilagan was not able to sufficiently allege that
his right to privacy in life, liberty or security was or would be violated through
the supposed reproduction and threatened dissemination of the subject sex
video.
• While Ilagan purports a privacy interest in the suppression of this video –
which he fears would somehow find its way to Quiapo or be uploaded in the
internet for public consumption – he failed to explain the connection between
such interest and any violation of his right to life, liberty or security.  Indeed,
courts cannot speculate or contrive versions of possible transgressions.
• As the rules and existing jurisprudence on the matter evoke, alleging and
eventually proving the nexus between one’s privacy right to the cogent rights
to life, liberty or security are crucial in habeas data cases, so much so that a
failure on either account certainly renders a habeas data petition dismissible,
as in this case.
 Who may file
• Any aggrieved party may file a petition for the writ of habeas
data.
• However, in cases of extralegal killings and enforced
disappearances, the petition may be filed by:
a) Any member of the immediate family of the aggrieved party,
namely: the spouse, children and parents; or
b) Any ascendant, descendant or collateral relative of the aggrieved
party within the fourth civil degree of consanguinity or affinity, in
default of those mentioned in the preceding paragraph. [Sec. 2,
Rule on WHD]
• Unlike in amparo cases, human rights organizations or
institutions are no longer allowed to file the petition.
 Where to file
• The petition may be filed with the Regional Trial
Court where the petitioner or respondent resides,
or that which has jurisdiction over the place where
the data or information is gathered, collected or
stored, at the option of the petitioner.
• The petition may also be filed with the Supreme
Court or the Court of Appeals or the Sandiganbayan
when the action concerns public data files of
government offices. [Sec. 3, Rule on WHD]
 Issuance of the Writ
• Upon the filing of the petition, the court, justice or judge shall
immediately order the issuance of the writ if on its face it ought to
issue.
• The clerk of court shall issue the writ under the seal of the court and
cause it to be served within three (3) days from the issuance; or, in
case of urgent necessity, the justice or judge may issue the writ under
his or her own hand, and may deputize any officer or person serve it.
• The writ shall also set the date and time for summary hearing of the
petition which shall not be later than ten (10) work days from the date
of its issuance. [Sec. 7, Rule on WHD]
• The petition must adequately show that there exists a nexus between
the right to privacy on the one hand, and the right to life, liberty or
security on the other. [Lee v. Ilagan (2014)]
 Contents of the petition
• A verified written petition for a writ of habeas data should contain:
a) The personal circumstances of the petitioner and the respondent;
b) The manner the right to privacy is violated or threatened and how it affects
the right to life, liberty or security of the aggrieved party;
c) The actions and recourses taken by the petitioner to secure the data or
information;
d) The location of the files, registers or databases, the government office, and
the person in charge, in possession or in control of the data or information, if
known;
e) The reliefs prayed for, which may include the updating, rectification,
suppression or destruction of the database or information or files kept by the
respondent. In case of threats, the relief may include a prayer for an order
enjoining the act complained of; and
f) (f) Such other relevant reliefs as are just and equitable. [Sec. 6, Rule on WHD]
 Contents of return
• The respondent shall file a verified written return together with supporting
affidavits within five (5) working days from service of the writ, which period may
be reasonably extended by the Court for justifiable reasons.
• The return shall, among other things, contain the following:
a) The lawful defenses such as national security, state secrets, privileged communications,
confidentiality of the source of information of media and others;
b) In case of respondent in charge, in possession or in control of the data or information
subject of the petition;
i. a disclosure of the data or information about the petitioner, the nature of such data or
information, and the purpose for its collection;
ii. the steps or actions taken by the respondent to ensure the security and confidentiality of the data
or information; and,
iii. the currency and accuracy of the data or information held; and,
c) Other allegations relevant to the resolution of the proceeding.
• A general denial of the allegations in the petition shall not be allowed. [Sec. 10,
Rule on WHD]
 Instances when petition be heard in
chambers
• While hearing is generally made in public, a
hearing in chambers may be conducted where:
1) the respondent invokes the defense that the
release of the data or information in question
shall compromise national security or state
secrets; or
2) when the data or information cannot be divulged
to the public due to its nature or privileged
character. [Sec. 12, Rule on WHD]
 Consolidation
• When a criminal action is filed subsequent to the
filing of a petition for the writ, the latter shall be
consolidated with the criminal action.
• When a criminal action and a separate civil action
are filed subsequent to a petition for a writ of habeas
data, the petition shall be consolidated with the
criminal action.
• After consolidation, the procedure under this Rule
shall continue to govern the disposition of the reliefs
in the petition. [Sec. 21, Rule on WHD]
Effect of filing of a criminal action
• When a criminal action has been commenced,
no separate petition for the writ shall be filed.
• The relief under the writ shall be available to
an aggrieved party by motion in the criminal
case. [Sec. 22, Rule on WHD]
 Institution of separate action
• The filing of a petition for the writ of habeas
data shall not preclude the filing of separate
criminal, civil or administrative actions. [Sec.
20, Rule on WHD]
 Quantum of proof in application for
issuance of writ of habeas data
• The quantum of proof needed in a writ of habeas data is
substantial evidence or that amount of evidence which a
reasonable mind might accept as adequate to support a
conclusion. [Sec. 16, Rule on WHD]
• The allegations in the petition must be supported
by substantial evidence showing an actual or threatened
violation of the right to privacy in life, liberty or security of the
victim. In this relation, it bears pointing out that the writ
of habeas data will not issue to protect purely property or
commercial concerns nor when the grounds invoked in support
of the petitions therefor are vague and doubtful. [Lee v. Ilagan
(2014)]
 Change of name
• Rule 103 procedurally governs judicial petitions for change of given name
or surname, or both, pursuant to Article 376 of the Civil Code. This rule
provides the procedure for an independent special proceeding in court to
establish the status of a person involving his relations with others, that is,
his legal position in, or with regard to, the rest of the community. In
petitions for change of name, a person avails of a remedy to alter the
"designation by which he is known and called in the community in which
he lives and is best known." When granted, a person's identity and
interactions are affected as he bears a new "label or appellation for the
convenience of the world at large in addressing him, or in speaking of, or
dealing with him." Judicial permission for a change of name aims to
prevent fraud and to ensure a record of the change by virtue of a court
decree. [Leonen; Republic v. Gallo (2018)]
 Nature of the proceeding
• The proceeding under Rule 103 is also an action in rem
which requires publication of the order issued by the
court to afford the State and all other interested parties to
oppose the petition. When complied with, the decision
binds not only the parties impleaded but the whole
world.
• As notice to all, publication serves to indefinitely bar all
who might make an objection. "It is the publication of
such notice that brings in the whole world as a party in
the case and vests the court with jurisdiction to hear and
decide it. [Leonen; Republic v. Gallo (2018)]
Differences under Rule 103, Republic Act No.
9048 and Rule 108
• As to scope of subject matter:
– Rule 103: Change or full name or surname (substantial
corrections)
– Rule 108: Correction of substantial errors or cancellation
of entries in the civil registry (substantial corrections)
– RA 9048 as amended by RA 10172:
• Clerical or typographical errors and
• Change of first name or nickname,
• The day and month in the date of birth or
• Sex of a person where it is patently clear that there was a
clerical or typographical error or mistake in the entry.
Grounds for change of name under Rule 103

• Jurisprudence has recognized the following grounds as sufficient to

warrant a change of name, to wit:
a) when the name is ridiculous, dishonorable or extremely difficult to write or
pronounce;
b) when the change results as a legal consequence of legitimation or adoption;
c) when the change will avoid confusion;
d) when one has continuously used and been known since childhood by a
Filipino name and was unaware of alien parentage;
e) when the change is based on a sincere desire to adopt a Filipino name to
erase signs of former alienage, all in good faith and without prejudice to
anybody; and
f) when the surname causes embarrassment and there is no showing that the
desired change of name was for a fraudulent purpose or that the change of
name would prejudice public interest. [Leonen; Republic v. Gallo (2018)]
 Grounds for Change of First Name or
Nickname under RA 9048
• The petition for change of first name or nickname
may be allowed in any of the following cases:
1) The petitioner finds the first name or nickname to
be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce.
2) The new first name or nickname has been habitually
and continuously used by the petitioner and he has
been publicly known by that by that first name or
nickname in the community: or
3) The change will avoid confusion. [Sec. 4, RA 9048]
 Absentees
• An absentee is a person who disappears from
his domicile, his whereabouts being unknown,
and without having left an agent to administer
his property, or the power conferred upon the
agent has expired, any interested party,
relative or friend. [Sec. 1, Rule 107]
 Purpose of the rule
• The declaration of absence made in accordance with the
provisions of the Civil Code has for its sole purpose to enable
the taking of the necessary precautions for the administration
of the estate of the absentee.
• The law requires the judge to appoint a representative for the
absentee precisely to safeguard the property or interest of the
latter.
• It is thus imperative that the declaration of absence be for a
specific purpose, and that purpose can be no other than the
protection of the interest or property of the absentee. [In Re
Petition for Declaration of Absence of Roberto L. Reyes, G.R. No.
L-32036 (1986)]
 Who may file; when to file
• After the lapse of two (2) years from his disapperance and
without any news about the absentee or since the receipt of
the last news, or of five (5) years in case the absentee has left
a person in charge of the administration of his property, the
declaration of his absence and appointment of a trustee or
administrative may be applied for by any of the following:
a) The spouse present;
b) The heirs instituted in a will, who may present an authentic copy of
the same.
c) The relatives who would succeed by the law of intestacy; and
d) Those who have over the property of the absentee some right
subordinated to the condition of his death. [Sec. 2, Rule 107]
 Cancellation or correction of entries in the
civil registry
• Rule 108 covers principally correction of entries which are not merely
clerical or typographical errors.
• For correction of clerical or typographical errors, the principal governing
law is RA 9048 which authorizes the local civil registrar or the consul
general to effect such corrections.
• RA 9048 amended Articles 376 and 412 of the Civil Code, effectively
removing clerical errors and changes of the name outside the ambit of
Rule 108 and putting them under the jurisdiction of the civil registrar.
[Leonen; Republic v. Gallo (2018)]
• Thus, a person may now change his or her first name or correct clerical
errors in his or her name through administrative proceedings. Rules 103
and 108 only apply if the administrative petition has been filed and later
denied. [Bartolome v. Republic (2019)]
 Entries subject to cancellation or correction under
Rule 108, in relation to Republic Act No. 9048
1) Births
2) Marriage
3) Deaths
4) Legal separations
5) Judgments of annulments of marriage
6) Judgments declaring marriages void from the beginning
7) Legitimations
8) Adoptions
9) Acknowledgments of natural children
10)Naturalization
11)Election, loss or recovery of citizenship
12)Civil interdiction
13)Judicial determination of filiation [Sec. 2, Rule 108]
14)Changes of name, except for clerical or typographical errors and change of first name or
nickname which is initially institute by an administrative proceeding. [Sec. 1, RA 9048 as
amended]
Corrections that can be made under RA 9048
as amended by RA 10172
• The concerned city or municipal civil registrar or
consul general can make corrections on the
following without need of judicial order:
1) Clerical or typographical error;
2) Change of first name or nickname;
3) Change of the day and month in the date of birth; or
4) Sex of a person where it is patently clear that there
was a clerical error or mistake in the entry. [Sec. 1,
RA 9048 as amended]
 Clerical or typographical error
• Republic Act No. 10172 defines a clerical or typographical error as a recorded
mistake, "which is visible to the eyes or obvious to the understanding.“
• "Clerical or typographical error" refers to a mistake committed in the performance
of clerical work in writing, copying, transcribing or typing an entry in the civil
register that is harmless and innocuous, such as:
1) Misspelled name or misspelled place of birth;
2) Mistake in the entry of day and month in the date of birth; or
3) The sex of the person or the like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to other
existing record or records.
• Provided, however, That no correction must involve the change of nationality,
age, or status of the petitioner. [Sec. 2(3), RA 10172]
• Corrections may be made even though the error is not typographical if it is
"obvious to the understanding," even if there is no proof that the name or
circumstance in the birth certificate was ever used. [Republic v. Gallo (2018)]
Appeals in special proceeding; Judgments
and orders for which appeal may be taken
• An interested person may appeal in special proceedings from an order or
judgment rendered by a Court of First Instance or a Juvenile and Domestic
Relations Court, where such order or judgment:
a) Allows or disallows a will;
b) Determines who are the lawful heirs of a deceased person, or the distributive share of
the estate to which such person is entitled;
c) Allows or disallows, in whole or in part, any claim against the estate of a deceased
person, or any claim presented on behalf of the estate in offset to a claim against it;
d) Settles the account of an executor, administrator, trustee or guardian;
e) Constitutes, in proceedings relating to the settlement of the estate of a deceased
person, or the administration of a trustee or guardian, a final determination in the lower
court of the rights of the party appealing, except that no appeal shall be allowed from
the appointment of a special administrator; and
f) Is the final order or judgment rendered in the case, and affects the substantial rights of
the person appealing unless it be an order granting or denying a motion for a new trial
or for reconsideration. [Sec. 1, Rule 109]
 When to appeal
Proceeding
Special proceedings
Writ of habeas corpus
Writ of amparo
Writ of habeas data
Deadline to file an appeal
Notice of appeal: 15 days from notice of
the order or judgment appealed from
Record on appeal: 30 days from notice of
the order or judgment appealed from if
the case involves multiple appeals [Sec. 3,
Rule 41]
48 hours from notice of judgment [Sec. 3,
Rule 41]
5 working days from notice of judgment
[Sec. 19, A.M. No. 07-9-12-SC]
5 working days from notice of judgment
[Sec. 19, A.M. No. 08-1-16-SC]
 Modes of appeal
• Rule 109 contemplates multiple appeals during
the pendency of special proceedings.
• A record on appeal – in addition to the notice
of appeal – is thus required to be filed as the
original records of the case should remain with
the trial court to enable the rest of the case to
proceed in the event that a separate and
distinct issue is resolved by said court and held
to be final. [Republic v. Nishina (2010)]
 Rule on advance distribution
• Although it is within the trial court’s discretion whether or
not to permit the advance distribution of the estate, its
exercise of discretion is qualified by the following:
a) Advance distribution shall pertain only to such part of the estate
as may not be affected by a pending controversy or appeal; and
b) The debts, funeral charges, administration expenses, and estate
taxes must first have been paid, unless the distributees or any of
them give a bond to secure such payment. [Sec. 2, Rule 109]
• The order denying a motion for advance distribution is
merely interlocutory and, thus, not appealable. [Ignacio v.
Reyes (2017)]