Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
Aboga
With notes from Remedial Law Compendium by Regalado
PART II — SPECIAL PROCEEDINGS
(Rule 72 to 109)
GENERAL PROVISION
RULE 72
Subject Matter and Applicability of General Rules
Section 1. Subject matter of special proceedings. —
Rules of special proceedings are provided for in the following
cases:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor
natural children;
(l) Declaration of absence and death;
(m) Cancellation of correction of entries in the civil
registry.
Special Proceedings
It is an application to establish the status or right of a party or a
particular fact, or any remedy other than an ordinary suit in a court of
justice
NOTE: Special proceedings are petitions filed in court, therefore
the parties in a special proceeding are called petitioner and
respondent.
Other Special proceedings under the Family Courts Act
1. Declaration of nullity of marriage
2. Annulment of voidable marriages
3. Legal separation
4. Provisional orders
5. Custody of minors
6. Habeas Corpus proceedings in relation to custody of minors
7. Presumption of death
Other Laws with Special Proceedings
1. VAWC
2. Arbitration Law and Alternative Dispute Resolution
3. SC Circular: Petition for writ of Amparo and Petition for writ
of Habeas Data
Section 2. Applicability of rules of civil actions. — In the
absence of special provisions, the rules provided for in
ordinary actions shall be, as far as practicable, applicable in
special proceedings.
Settlement of Estate of Deceased Persons
Four kinds of settlement of estate of deceased persons
1. Extra-judicial settlement
2. Summary settlement of estates of small value
3. Judicial partition
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4. Judicial settlement through letters testamentary or letters of
administration with or without will annexed.
NOTE: If a person dies, you have to first determine whether he
executed a will or not. If in fact he executed a will, you can file a petition
for the probate of will. If he did not execute a will, you can file a petition
for letters testamentary, as part of the so-called settlement of the
estate of a deceased person.
RULE 73
Venue and Process
Venue pertains to the court where the settlement of the estate of the
deceased person is to be filed.
Where estate of deceased persons settled
Section 1. If the decedents is an inhabitant of the
Philippines at the time of his death, whether a citizen or an
alien, his will shall be proved, or letters of administration
granted, and his estate settled, in the Court of First Instance
in the province in which he resides at the time of his death,
and if he is an inhabitant of a foreign country, the Court of
First Instance of any province in which he had estate. The
court first taking cognizance of the settlement of the estate
of a decedent, shall exercise jurisdiction to the exclusion of all
other courts. The jurisdiction assumed by a court, so far as it
depends on the place of residence of the decedent, or of the
location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the
record.
Jurisdiction of petitions for Settlement of Estate
Is determined by the gross value of the estate. If it does not
exceeds 300,000 or 400,000 in Metro Manila, it must filed in the MTC.
If it exceeds 300,000 or 400,000 in Metro Manila, it must be filed in the
RTC.
Venue is determined by the residence of the decedent.
Thus, it is important to note whether the decedent is a resident of
the Philippines or not.
Residence is the personal, actual or physical habitation, his
actual residence or place of abode, regardless of his citizenship. It is
not domicile.
If decedent is a resident of the Philippines, venue is laid
exclusively in the province of his residence.
If decedent is a non-resident of the Philippines at the time of his
death, venue lies in any province in which he has estate, the RTC first
taking cognizance of the proceeding for the settlement acquires
jurisdiction to the exclusion of other courts.
Where estate settled upon dissolution of marriage
Section 2. When the marriage is dissolved by the death
of the husband or wife, the community property shall be
inventoried, administered, and liquidated, and the debts
thereof paid, in the testate or intestate proceedings of the
deceased spouse. If both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate
proceedings of either.
pg. 1
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
NOTE: With respect to the liquidation of absolute community of
properties or conjugal partnership of gains, the liquidation must be
made in the settlement of estate of the deceased spouse. If both are
already deceased, the same can be filed in either settlement of estate.
The extent of the powers of a probate court in settlement of estate
covers the determination of the following matters:
1. Whether the will was executed in accordance with the
formalities required by law
2. Whether testator was sane or not during the execution of the
will
NOTE: Probate court has no jurisdiction to determine the title of
the property subject of the proceedings.
Except: The probate court may pass upon the question of title to
property only where:
a. The interested parties who are all heirs of the deceased consent
thereto and the interests of third parties are not prejudiced;
b. If it pertains to collation or advancement
c. In a provisional manner, to determine whether said property
should be included in or excluded from the inventory without
prejudice to the final determination of title in a separate action,
especially where the property is in the possession of a 3rd party
who has a certificate of title thereto.
Other powers of the Probate Court
1. To determine questions as to who are the heirs of the deceased;
2. Recognition of a natural child and illegitimate children;
3. To determine the validity of disinheritance effected by the
testator; and
4. To determine the status of a woman who claims to be the lawful
wife of the decedent.
5. Pass upon the validity of a waiver of hereditary rights.
6. Its jurisdiction extends to matters incidental or collateral to the
settlement and distribution of the estate.
Not within the powers of the probate court
1. To rule on the validity of the redemption effected by the
administrator of the realty mortgaged during the decedent’s
lifetime and thereafter sold at extrajudicial foreclosure sale to the
mortgagee who has taken possession thereof.
2. The issuance of writs of execution. Except:
a. To satisfy the contributive shares of the devisees, legatees and
heirs in possession of the decedent’s assets;
b. To enforce payment of the expenses of partition; and
c. To satisfy the costs when a person is cited for examination in
probate proceedings. (By virtue of inclusio unius est exclusio
alterius)
Section 3. Process. — In the exercise of probate
jurisdiction, Courts of First Instance may issue warrants and
process necessary to compel the attendance of witnesses or
to carry into effect theirs orders and judgments, and all other
powers granted them by law. If a person does not perform an
order or judgment rendered by a court in the exercise of its
probate jurisdiction, it may issue a warrant for the
apprehension and imprisonment of such person until he
performs such order or judgment, or is released.
Section 4. Presumption of death. – For purposes of
settlement of his estate, a person shall be presumed dead if
absent and unheard from for the periods fixed in the Civil
Code. But if such person proves to be alive, he shall be entitled
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to the balance of his estate after payment of all his debts. The
balance may be recovered by motion in the same proceeding.
RULE 74
Summary Settlement of Estate
Section 1. Extrajudicial settlement by agreement
between heirs. — If the decedent left no will and no debts
and the heirs are all of age, or the minors are represented by
their judicial or legal representatives duly authorized for the
purpose, the parties may without securing letters of
administration, divide the estate among themselves as they
see fit by means of a public instrument filed in the office of
the register of deeds, and should they disagree, they may do
so in an ordinary action of partition. If there is only one heir,
he may adjudicate to himself the entire estate by means of
an affidavit filed in the office of the register of deeds. The
parties to an extrajudicial settlement, whether by public
instrument or by stipulation in a pending action for partition,
or the sole heir who adjudicates the entire estate to himself
by means of an affidavit shall file, simultaneously with and as
a condition precedent to the filing of the public instrument,
or stipulation in the action for partition, or of the affidavit in
the office of the register of deeds, a bond with the said
register of deeds, in an amount equivalent to the value of the
personal property involved as certified to under oath by the
parties concerned and conditioned upon the payment of any
just claim that may be filed under section 4 of this rule. It shall
be presumed that the decedent left no debts if no creditor
files a petition for letters of administration within two (2)
years after the death of the decedent.
The fact of the extrajudicial settlement or
administration shall be published in a newspaper of general
circulation in the manner provided in the nest succeeding
section; but no extrajudicial settlement shall be binding upon
any person who has not participated therein or had no notice
thereof.
Requisites of a valid extrajudicial settlement
1. The decedent dies intestate;
2. There are no outstanding debts of the estate at the time of the
settlement;
3. The heirs are all of age, or the minors are represented by their
judicial guardians or legal representatives;
4. The settlement is made in a public instrument, stipulation or
affidavit duly filed with the Registry of Deeds; and
5. The fact of such extrajudicial settlement must be published in a
newspaper of general circulation in the province once a week for
3 consecutive weeks.
6. If what is involved is a personal property, simultaneously with the
registration of the settlement, there must be a bond filed with the
ROD in the amount equivalent to the value of the personal
property, to answer for whatever claims that may crop up within
a period of 2 years.
The law requires the extrajudicial settlement of the estate to be
in a public instrument. If the extrajudicial settlement is not in a public
instrument, the same is still valid and binding but only to the parties
thereto but will not be binding to third persons.
NOTE: An extrajudicial settlement is in a nature of a contract
between the parties. Any objection to the validity of the same can be
brought up within 2 years from the date of the execution of the
pg. 2
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
extrajudicial settlement. Those person allowed to question the validity
thereof are only those who participated in the extrajudicial settlement.
(Time-Bar Rule)
Summary settlement of estate of small value
Section 2.— Whenever the gross value of the estate of
a deceased person, whether he died testate or intestate, does
not exceed ten thousand pesos, and that fact is made to
appear to the Court of First Instance having jurisdiction of the
estate by the petition of an interested person and upon
hearing, which shall be held not less than one (1) month nor
more than three (3) months from the date of the last
publication of a notice which shall be published once a week
for three (3) consecutive weeks in a newspaper of general
circulation in the province, and after such other notice to
interest persons as the court may direct, the court may
proceed summarily, without the appointment of an executor
or administrator, and without delay, to grant, if proper,
allowance of the will, if any there be, to determine who are
the persons legally entitled to participate in the estate, and
to apportion and divide it among them after the payment of
such debts of the estate as the court shall then find to be due;
and such persons, in their own right, if they are of lawful age
and legal capacity, or by their guardians or trustees legally
appointed and qualified, if otherwise, shall thereupon be
entitled to receive and enter into the possession of the
portions of the estate so awarded to them respectively. The
court shall make such order as may be just respecting the
costs of the proceedings, and all orders and judgments made
or rendered in the course thereof shall be recorded in the
office of the clerk, and the order of partition or award, if it
involves real estate, shall be recorded in the proper register's
office.
Section 3. Bond to be filed by distributees. — The court,
before allowing a partition in accordance with the provisions
of the preceding section, my require the distributees, if
property other than real is to be distributed, to file a bond in
an amount to be fixed by court, conditioned for the payment
of any just claim which may be filed under the next
succeeding section.
NOTE: The value of the gross estate should not exceed 10,000
pesos and it must be filed in the first level courts. It may be filed by any
interested person such as creditors, but it must be without the
appointment of executors or administrator.
The law requires a bond to filed if personal properties are
involved, the value of which is determined by the court, unlike that in
extra-judicial settlement wherein the amount of the bond is equal to
the value of the personal property as established by the instrument of
adjudication. The purpose of the bond is to serve as security
conditioned upon payment of the claim which may be filed in the
action.
Section 4. Liability of distributees and estate. — If it
shall appear at any time within two (2) years after the
settlement and distribution of an estate in accordance with
the provisions of either of the first two sections of this rule,
that an heir or other person has been unduly deprived of his
lawful participation in the estate, such heir or such other
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person may compel the settlement of the estate in the courts
in the manner hereinafter provided for the purpose of
satisfying such lawful participation. And if within the same
time of two (2) years, it shall appear that there are debts
outstanding against the estate which have not been paid, or
that an heir or other person has been unduly deprived of his
lawful participation payable in money, the court having
jurisdiction of the estate may, by order for that purpose, after
hearing, settle the amount of such debts or lawful
participation and order how much and in what manner each
distributee shall contribute in the payment thereof, and may
issue execution, if circumstances require, against the bond
provided in the preceding section or against the real estate
belonging to the deceased, or both. Such bond and such real
estate shall remain charged with a liability to creditors, heirs,
or other persons for the full period of two (2) years after such
distribution, notwithstanding any transfers of real estate that
may have been made.
Section 5. Period for claim of minor or incapacitated
person. — If on the date of the expiration of the period of two
(2) years prescribed in the preceding section the person
authorized to file a claim is a minor or mentally
incapacitated, or is in prison or outside the Philippines, he
may present his claim within one (1) year after such disability
is removed.
NOTE: Upon the death of the decedent, you must first determine
whether or not he left a will. A petition for probate of will is necessary
because under the Civil Code, no property shall pass or transmitted
unless the will is proved in court.
Kinds of Will
1. Notarial; and
2. Holographic
Formal requisites for the execution and attestation of Notarial Wills
1. The will must be in writing;
2. It must be executed in a language or dialect known to the
testator;
3. The will must be subscribed at the end thereof by the testator
himself or by the testator’s name written by another person in
his presence, and by his express direction;
4. The will must be attested and subscribed by three or more
credible witnesses in the presence of the testator and of one
another;
5. The testator or the person requested by him to write his name,
and the instrument witnesses of the will signed each and every
page thereof except the last, on the left margin; and
6. All the pages are numbered correlatively in letters, placed on the
upper part of each page.
7. There must be attestation clause
8. It must be acknowledged by a Notary Public
Formal requisite for the execution and attestation of Holographic
Wills
It must be entirely written and dated in the hand of the testator
himself.
Q: If a Holographic Will is subscribed or notarized by a Notary
public, does it cease to be a holographic will?
A: No. The will remains to be holographic and the
acknowledgment by a Notary Public is a mere surplusage.
pg. 3
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
NOTE: The determination of the validity of the will is based on the
intention of the testator.
RULE 75
Production of Will. Allowance of Will Necessary
Section 1. Allowance necessary. Conclusive as to
execution. — No will shall pass either real or personal estate
unless it is proved and allowed in the proper court. Subject to
the right of appeal, such allowance of the will shall be
conclusive as to its due execution.
Section 2. Custodian of will to deliver. — The person
who has custody of a will shall, within twenty (20) days after
he knows of the death of the testator, deliver the will to the
court having jurisdiction, or to the executor named in the will.
Section 3. Executor to present will and accept or refuse
trust. — A person named as executor in a will shall, within
twenty (20) days after he knows of the death of the testate,
or within twenty (20) days after he knows that he is named
executor if he obtained such knowledge after the death of the
testator, present such will to the court having jurisdiction,
unless the will has reached the court in any other manner,
and shall, within such period, signify to the court in writing
his acceptance of the trust or his refusal to accept it.
Section 4. Custodian and executor subject to fine for
neglect. — A person who neglects any of the duties required
in the two last preceding sections without excused
satisfactory to the court shall be fined not exceeding two
thousand pesos.
Section 5. Person retaining will may be committed. —
A person having custody of a will after the death of the
testator who neglects without reasonable cause to deliver
the same, when ordered so to do, to the court having
jurisdiction, may be committed to prison and there kept until
he delivers the will.
RULE 76
Allowance or Disallowance of Will
Section 1. Who may petition for the allowance of will.
— Any executor, devisee, or legatee named in a will, or any
other person interested in the estate, may, at any time after
the death of the testator, petition the court having
jurisdiction to have the will allowed, whether the same be in
his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition
the court for the allowance of his will.
Who can initiate petition for the allowance of the will
1. The testator himself during his lifetime
2. Executor;
3. Devisee;
4. Legatee
5. Any person interested in the estate;
6. Any party directed by the court to file the same.
Duty of a person who has in his possession a will of a decedent
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He is obliged, within 20 days from knowledge of the death of the
decedent, to deliver the will to the court. If the will names an executor,
the person must deliver the will the executor otherwise he shall be
held liable under the law.
If it is the executor himself is in possession of the will, at any time,
he can petition for the probate of the will.
Sanctions of failure to deliver the will:
1. Posting of bond in an amount of 2,000.00;
2. If he refuses to deliver the will as ordered by the court, the
person can be committed to prison until and after he delivers the
will in court. This is synonymous in contempt of court.
Contents of petition
Section 2. A petition for the allowance of a will must
show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs,
legatees, and devisees of the testator or decedent;
(c) The probable value and character of the property of
the estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the
name of the person having custody of it.
But no defect in the petition shall render void the
allowance of the will, or the issuance of letters testamentary
or of administration with the will annexed.
Effect if petition did not comply with this requirements
The fact the petition is defective will jot render the petition
invalid. This is merely a guide to lawyers in filing the petition.
Before the petition is set for hearing, there are certain
requirements which must be complied with. These are the
jurisdictional requirements. In all special proceedings, one common
procedure is that before the hearing starts, there must be proofs of
compliance with the jurisdictional requirement which must be done
during the initial hearing otherwise trial will not proceed.
These jurisdictional requirements are service of notice and
publication which must be complied with by the petitioner, done
during the initial hearing.
Section 3. Court to appoint time for proving will. Notice
thereof to be published. — When a will is delivered to, or a
petition for the allowance of a will is filed in, the court having
jurisdiction, such court shall fix a time and place for proving
the will when all concerned may appear to contest the
allowance thereof, and shall cause notice of such time and
place to be published three (3) weeks successively, previous
to the time appointed, in a newspaper of general circulation
in the province.
But no newspaper publication shall be made where the
petition for probate has been filed by the testator himself.
Section 4. Heirs, devisees, legatees, and executors to
be notified by mail or personally. — The court shall also
cause copies of the notice of the time and place fixed for
proving the will to be addressed to the designated or other
known heirs, legatees, and devisees of the testator resident
in the Philippines at their places of residence, and deposited
pg. 4
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
in the post office with the postage thereon prepaid at least
twenty (20) days before the hearing, if such places of
residence be known. A copy of the notice must in like manner
be mailed to the person named as executor, if he be not the
petitioner; also, to any person named as co-executor not
petitioning, if their places of residence be known. Personal
service of copies of the notice at least (10) days before the
day of hearing shall be equivalent to mailing.
If the testator asks for the allowance of his own will,
notice shall be sent only to his compulsory heirs.
PUBLICATION
What should be published is the court’s order setting the date and
the time of the initial hearing of the petition. Publication must be made
once a week successively three times.
Publication is important because the probate of a will is a
proceeding in rem and the publication provided for by the Rule is a
jurisdictional requirement as a notice to the whole world.
SERVICE OF NOTICE
Service of notice may be done by mail or personally. The notice
must be sent to heirs, devisees, legatees who are residents of the
Philippines, and executors. The executor is entitled to notice if he is not
the petitioner.
If notice is by mail, it must be sent at least 20 days before the
hearing.
If it is by personal service, notice must be sent at least 10 days
before the hearing.
If the petitioner is the testator himself, notice shall only be sent
to his compulsory heirs.
Compulsory heirs under the New Civil Code of the Philippines.
Article 887. The following are compulsory heirs:
1. Legitimate children and descendants, with respect to
their legitimate parents and ascendant;
2. In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
3. The widow or widower;
4. Acknowledged natural children, and natural children
by legal fiction;
5. Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not
excluded by those in Nos. 1 and 2; neither do they exclude
one another.
In all cases of illegitimate children, their filiation must be
duly proved.
The father or mother of illegitimate children of the three
classes mentioned, shall inherit from them in the manner and
to the extent established by this code.
Proof at hearing.
What sufficient in absence of contest
Section 5. At the hearing compliance with the provisions
of the last two preceding sections must be shown before the
introduction of testimony in support of the will. All such
testimony shall be taken under oath and reduced to writing.
It no person appears to contest the allowance of the will, the
court may grant allowance thereof on the testimony of one
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of the subscribing witnesses only, if such witness testify that
the will was executed as is required by law.
In the case of a holographic will, it shall be necessary
that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and
the signature are in the handwriting of the testator. In the
absence of any such competent witness, and if the court
deem it necessary, expert testimony may be resorted to.
NOTE: Section 5 provides for the requisite proof where the
petition for the probate of the will, notarial or holographic, is NOT
contested.
In the absence of any oppositions to such probate, the evidence
of the petitioner may be received ex parte.
JS: In answering questions relative to the evidence required for
proving a petition for probate of will, the answer should always be
qualified whether the probate is contested or not.
If the probate of probate is not contested:
1. In case of a Notarial will, the testimony of one subscribing
witness to the will is sufficient to prove the petition.
2. In a Holographic will, the evidence required to prove the
petition is the testimony of one witness who knows the
handwriting of the testator and in his absence, testimony of
an expert witness may be resorted to.
If the probate of a notarial will is contested, it is the duty of the
petitioner to produce all available attesting witnesses and the notary
public, but he is not concluded by the testimony of said witnesses, even
if adverse, as the court may still admit the will to probate on the basis
of other satisfactory evidence.
If any or all of these witness testifies against the probate of the
will, other witnesses may be presented.
Proof of lost or destroyed will. Certificate thereupon
Section 6. No will shall be proved as a lost or destroyed
will unless the execution and validity of the same be
established, and the will is proved to have been in existence
at the time of the death of the testator, or is shown to have
been fraudulently or accidentally destroyed in the lifetime of
the testator without his knowledge, nor unless its provisions
are clearly and distinctly proved by at least two (2) credible
witnesses. When a lost will is proved, the provisions thereof
must be distinctly stated and certified by the judge, under the
seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded.
NOTE: Section 6 provides for the requisite quantum of evidence
to prove a lost or destroyed notarial will (not holographic will) in the
absence of contest, and constitutes as exception to the rule on
secondary evidence (Sec. 5, Rule 130)
What the witnesses must clearly establish, who need not be an
attesting witness, although the testimony of the latter would be
entitled to greater weight:
1. The due execution and formal validity of the will;
2. The existence of the will at the time of the death of the
testator; or
3. Its fraudulent or accidental destruction during the lifetime of
the testator and without his knowledge; and
pg. 5
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
4. The provision of the will to be testified to by at least 2
credible witnesses.
If probate of lost or destroyed will is contested
Section 11 of this rule has to be complied with – all subscribing
witnesses and the notary public must be accounted for and, if
available, their testimony must be secured, and all the facts stated in
Sec. 6 must be established by them or by 2 credible witnesses.
Where the lost will is shown to have been in the possession of the
testator when last seen, or that the testator has ready access to the
will and it cannot be found after his death, the presumption is that, he
destroyed or cancelled it on his own volition.
In case of lost or destroyed holographic wills
The same cannot be proved by the bare testimony of witnesses
who have seen or read the will as probate thereof requires
identification of the handwriting and signature of the testator
presupposing the availability of the holographic will in court.
SC: Perhaps it may be proved by photographic, photostatic, or
carbon copies or similar means.
NOTE: In interpreting the terms of the will, it is the intent of the
testator which controls.
Section 7. Proof when witnesses do not reside in
province. — If it appears at the time fixed for the hearing that
none of the subscribing witnesses resides in the province, but
that the deposition of one or more of them can be taken
elsewhere, the court may, on motion, direct it to be taken,
and may authorize a photographic copy of the will to be
made and to be presented to the witness on his examination,
who may be asked the same questions with respect to it, and
to the handwriting of the testator and others, as would be
pertinent and competent if the original will were present.
Proof when witnesses dead or insane or do not reside in the
Philippines
Section 8. If the appears at the time fixed for the hearing
that the subscribing witnesses are dead or insane, or that
none of them resides in the Philippines, the court may admit
the testimony of other witnesses to prove the sanity of the
testator, and the due execution of the will; and as evidence
of the execution of the will, it may admit proof of the
handwriting of the testator and of the subscribing witnesses,
or of any of them.
NOTE: In the case of a notarial will where none of the attesting
witnesses are available, the court may admit other witnesses and
admit proof of the handwriting of the testator and the attesting
witnesses.
Before these other witnesses may be presented, it necessary that
a petitioner must show satisfactorily to the court the fact of the
insanity, death or residence outside the Philippines of the witness.
Section 9. Grounds for disallowing will. — The will shall
be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
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(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.
Section 10. Contestant to file grounds of contest. —
Anyone appearing to contest the will must state in writing his
grounds for opposing its allowance, and serve a copy thereof
on the petitioner and other parties interested in the estate.
Section 11. Subscribing witnesses produced or
accounted for where will contested. — If the will is
contested, all the subscribing witnesses, and the notary in the
case of wills executed under the Civil Code of the Philippines,
if present in the Philippines and not insane, must be produced
and examined, and the death, absence, or insanity of any of
them must be satisfactorily shown to the court. If all or some
of such witnesses are present in the Philippines but outside
the province where the will has been filed, their deposition
must be taken. If any or all of them testify against the due
execution of the will, or do not remember having attested to
it, or are otherwise of doubtful credibility, the will may
nevertheless, be allowed if the court is satisfied from the
testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the
manner required by law.
If a holographic will is contested, the same shall be
allowed if at least three (3) witnesses who know the
handwriting of the testator explicitly declare that the will and
the signature are in the handwriting of the testator; in the
absence of any competent witnesses, and if the court deem it
necessary, expert testimony may be resorted to.
Proof where testator petitions for allowance of holographic will
Section 12. Where the testator himself petitions for the
probate of his holographic will and no contest is filed, the fact
that he affirms that the holographic will and the signature
are in his own handwriting, shall be sufficient evidence of the
genuineness and due execution thereof. If the holographic
will is contested, the burden of disproving the genuineness
and due execution thereof shall be on the contestant. The
testator to rebut the evidence for the contestant.
NOTE: If it is the testator, during his lifetime, files the petition for
the probate, the evidence required will depend on whether the
petition is contested or not. If the petition is not contested, the
required evidence is his own testimony. If the same is contested, the
burden of disproving the genuineness and due execution of the will is
upon the oppositor. However, the testator is allowed to present
rebuttal evidence to rebut the evidence of the oppositor.
Certificate of allowance attached to prove will
Section 13. To be recorded in the Office of Register of
Deeds. — If the court is satisfied, upon proof taken and filed,
that the will was duly executed, and that the testator at the
time of its execution was of sound and disposing mind, and
pg. 6
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
not acting under duress, menace, and undue influence, or
fraud, a certificate of its allowance, signed by the judge, and
attested by the seal of the court shall be attached to the will
and the will and certificate filed and recorded by the clerk.
Attested copies of the will devising real estate and of
certificate of allowance thereof, shall be recorded in the
register of deeds of the province in which the lands lie.
RULE 77
Allowance of Will Proved Outside of Philippines and
Administration of Estate Thereunder
Section 1. Will proved outside Philippines may be
allowed here. — Wills proved and allowed in a foreign
country, according to the laws of such country, may be
allowed, filed, and recorded by the proper Court of First
Instance in the Philippines.
Section 2. Notice of hearing for allowance. — When a
copy of such will and of the order or decree of the allowance
thereof, both duly authenticated, are filed with a petition for
allowance in the Philippines, by the executor or other person
interested, in the court having jurisdiction, such court shall fix
a time and place for the hearing, and cause notice thereof to
be given as in case of an original will presented for allowance.
Section 3. When will allowed, and effect thereof. — If
it appears at the hearing that the will should be allowed in
the Philippines, the shall so allow it, and a certificate of its
allowance, signed by the judge, and attested by the seal of
the court, to which shall be attached a copy of the will, shall
be filed and recorded by the clerk, and the will shall have the
same effect as if originally proves and allowed in such court.
Section 4. Estate, how administered. — When a will is
thus allowed, the court shall grant letters testamentary, or
letters of administration with the will annexed, and such
letters testamentary or of administration, shall extend to all
the estate of the testator in the Philippines. Such estate, after
the payment of just debts and expenses of administration,
shall be disposed of according to such will, so far as such will
may operate upon it; and the residue, if any shall be disposed
of as is provided by law in cases of estates in the Philippines
belonging to persons who are inhabitants of another state or
country.
RULE 78
Letters Testamentary and of Administration, When and to Whom
Issued
NOTE: If the decedent died without leaving a will, a petition for
the issuance of letters of administration must be filed.
You would note that the contents of a this petition is a little bit
the same with a petition for probate of will, the only difference lies on
the fact that in the latter, there must be a will and in the former there
is no will.
In the appointment of executors or administrator there are those
who are not qualified to be appointed.
Section 1. Who are incompetent to serve as executors
or administrators. — No person in competent to serve as
executor or administrator who:
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(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.
Section 2. Executor of executor not to administer
estate. — The executor of an executor shall not, as such,
administer the estate of the first testator.
Executor – person named in the will to administer the decedent’s
estate and carry out the provisions thereof.
Administrator – the person appointed by the court to administer
the estate where the decedent dies intestate, or where the will was
void and not allowed to probate, or no executor was named in the will,
or the executor named therein is incompetent or refuses to serve as
such.
Corporation or association authorized to conduct the business of
a trust company in the Philippines may be appointed as an executor or
administrator of an estate in the same manner as an individual.
Section 3. Married women may serve. — A married
woman may serve as executrix or administratrix, and the
marriage of a single woman shall not affect her authority so
to serve under a previous appointment.
Section 4. 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 he is competent, accepts the
trust, and gives bond as required by these rules.
Section 5. Where some coexecutors disqualified others
may act. — When all of the executors named in a will cannot
act because of incompetency, refusal to accept the trust, or
failure to give bond, on the part of one or more of them,
letters testamentary may issue to such of them as are
competent, accept and give bond, and they may perform the
duties and discharge the trust required by the will.
Section 6. When and to whom letters of administration
granted. — If no executor is named in the will, or the executor
or executors are incompetent, refuse the trust, or fail to give
bond, or a person dies intestate, administration shall be
granted:
(a) To the surviving husband or wife, as the case may be,
or next of kin, or both, in the discretion of the court, or to such
person as such surviving husband or wife, or next of kin,
requests to have appointed, if competent and willing to
serve;
(b) 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;
pg. 7
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
(c) If there is no such creditor competent and willing to
serve, it may be granted to such other person as the court
may select.
When the court grants or allows the probate of the will,
thereafter, the court will issue letters testamentary to the executor
named in the will provided he is competent, he accepts the trust and
posts a bond otherwise the courts will appoint another executor in the
following order of preference:
1. Spouses and next of kin, or both as requested by both of them;
or
2. Any one of the principal creditor; or
3. Any other person selected by the court.
NOTE: A judgment for the petition of a probate of will is final thus
it can be appealed. A notice of appeal coupled with record on appeal
can be filed because settlement of estate is one of the cases where
multiple appeals can be allowed. Period to appeal is 30 days after
receipt of the order.
Even pending appeal, the executor can assume his duties as such
provided that the executor must prove that there are special reasons
for the need to allow the executor to assume his duties because the
appeal might have been filed to unduly delay the settlement of the
estate. This is synonymous to execution pending appeal in civil cases.
REMEMBER:
Settlement of estate is a broad term which pertains to the
actions which must be done after the death of the decedent. It
covers:
1. Extra-judicial settlement
2. Summary settlement of estates of small value
3. Judicial partition
4. Judicial settlement through letters testamentary or letters
of administration with or without will annexed.
If the decedent died leaving a will, a petition for probate of will
must be filed. If the testator dies, the executor or any person in
possession of the will has the obligation to submit to the court the
will within 20 days. And thereafter the petition must be filed.
Jurisdiction of the court depends on the value of the estate and by
reason of which, the gross value of the estate must be stated in the
petition.
If there is no will, a petition for letters of administration must
be filed.
RULE 79
Opposing Issuance of Letters Testamentary. Petition and Contest for
Letters of Administration
Section 1. Opposition to issuance of letters
testamentary. Simultaneous petition for administration. —
Any person interested in a will may state in writing the
grounds why letters testamentary should not issue to the
persons named therein as executors, or any of them, and the
court, after hearing upon notice, shall pass upon the
sufficiency of such grounds. A petition may, at the time, be
filed for letters of administration with the will annexed.
Section 2. Contents of petition for letters of
administration. — A petition for letters of administration
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must be filed by an interested person and must show, so far
as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, and the
names and residences of the creditors, of the decedent;
(c) The probable value and character of the property of
the estate;
(d) The name of the person for whom letters of
administration are prayed.
But no defect in the petition shall render void the
issuance of letters of administration.
Section 3. Court to set time for hearing. Notice
thereof. — When a petition for letters of administration is
filed in the court having jurisdiction, such court shall fix a time
and place for hearing the petition, and shall cause notice
thereof to be given to the known heirs and creditors of the
decedent, and to any other persons believed to have an
interest in the estate, in the manner provided in sections 3
and 4 of Rule 76.
Section 4. Opposition to petition for administration. —
Any interested person may, by filing a written opposition,
contest the petition on the ground of the incompetency of the
person for whom letters are prayed therein, or on the ground
of the contestant's own right to the administration, and may
pray that letters issue to himself, or to any competent person
or person named in the opposition.
Section 5. Hearing and order for letters to issue. — At
the hearing of the petition, it must first be shown that notice
has been given as hereinabove required, and thereafter the
court shall hear the proofs of the parties in support of their
respective allegations, and if satisfied that the decedent left
no will, or that there is no competent and willing executor, it
shall order the issuance of letters of administration to the
party best entitled thereto.
Section 6. When letters of administration granted to
any applicant. — Letters of administration may be granted
to any qualified applicant, though it appears that there are
other competent persons having better right to the
administration, if such persons fail to appear when notified
and claim the issuance of letters to themselves.
RULE 80
Special Administrator
Section 1. Appointment of special administrator. —
When there is delay in granting letters testamentary or of
administration by any cause including an appeal from the
allowance or disallowance of a will, the court may appoint a
special administrator to take possession and charge of the
estate of the deceased until the questions causing the delay
are decided and executors or administrators appointed.
Special administrator
When there is undue delay in the grant of the letters of
administration, the court is justified in granting the appointment of a
special administrator. If the court has already appointed the executor
or administrator, the appointment of a special administrator ceases
and the duties and responsibilities are transferred to the former.
pg. 8
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
Another instance when special administrator may be appointed is
when the regular administrator has a claim against the estate, in which
case a special administrator shall be appointed with respect to such
claim.
the removal of executor or administrator.
Section 2. Powers and duties of special adminsitrator.
— Such special administrator shall take possession and
charge of the goods, chattels, rights, credits, and estate of
the deceased and preserve the same for the executors or
administrator afterwards appointed, and for that purpose
may commence and maintain suits as administrator. He may
sell only such perishable and other property as the court
orders sold. A special administrator shall not be liable to pay
any debts of the deceased unless so ordered by the court.
General Powers and duties of special administrator
1. Possess and manage the estate for the purpose of payment of
debts;
2. Have access to partition books
3. Maintain in a tenantable repair the properties of the estate.
Section 3. When powers of special administrator
cease. Transfer of effects. Pending suits. — When letters
testamentary or of administration are granted on the estate
of the deceased, the powers of the special administrator shall
cease, and he shall forthwith deliver to the executor or
administrator the goods, chattels, money, and estate of the
deceased in his hands. The executor or administrator may
prosecute to final judgment suits commenced by such special
administrator.
Grounds for the Removal of Special Administrator
What is peculiar about the Rule in Special Administrator is that
the rules does not provide for the grounds upon which a special
administrator may be removed. However, the SC in several cases, held
that a special administrator can be removed on the ground of loss of
confidence. Other grounds are those provided for in the rules for the
removal of regular administrator or executor.
RULE 81
Bond of Executors and Administrators
Section 1. Bond to be given issuance of
letters. Amount. Conditions. — Before an executor or
administrator enters upon the execution of his trust, and
letters testamentary or administration issue, he shall give a
bond, in such sum as the court directs, conditioned as follows:
(a) To make and return to the court, within three (3)
months, a true and complete inventory of all goods, chattels,
rights, credits, and estate of the deceased which shall come
to his possession or knowledge or to the possession of any
other person for him;
(b) To administer according to these rules, and, if an
executor, according to the will of the testator, all goods,
chattels, rights, credits, and estate which shall at any time
come to his possession or to the possession of any other
person for him, and from the proceeds to pay and discharge
all debts, legacies, and charges on the same, or such
dividends thereon as shall be decreed by the court;
(c) To render a true and just account of his
administration to the court within one (1) years, and at any
other time when required by the court;
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(d) To perform all orders of the court by him to be
performed.
NOTE: Failure to comply with these requirements is a ground for
Section 2. Bond of executor where directed in
will. When further bond required. — If the testator in his will
directs that the executors serve without bond, or with only
his individual bond, he may be allowed by the court to give
bond in such sum and with such surety as the court approves
conditioned only to pay the debts of the testator; but the
court may require of the executor a further bond in case of a
change in his circumstance, or for other sufficient case, with
the conditions named in the last preceding section.
Section 3. Bonds of joint executors and administrators.
— When two or more persons are appointed executors or
administrators the court may take a separate bond from
each, or a joint bond from all.
Section 4. Bond of special administrator. — A special
administrator before entering upon the duties of his trust
shall give a bond, in such sum as the court directs,
conditioned that he will make and return a true inventory of
the goods, chattels, rights, credits, and estate of the
deceased which come to his possession or knowledge, and
that he will truly account for such as are received by him
when required by the court, and will deliver the same to the
person appointed executor or administrator, or to such other
person as may be authorized to receive them.
RULE 82
Revocation of Administration, Death, Resignation, and
Removal of Executors or Administrators
Section 1. Administration revoked if will
discovered. Proceedings thereupon. — If after letters of
administration have been granted on the estate of a
decedent as if he had died intestate, his will is proved and
allowed by the court, the letters of administration shall be
revoked and all powers thereunder cease, and the
administrator shall forthwith surrender the letters to the
court, and render his account with such time as the court
directs. Proceeding for the issuance of letters testamentary
or of administration under the will shall be as hereinbefore
provided.
Section 2. Court may be remove or accept resignation
of executor or administrator. Proceeding upon death,
resignation, or removal. — If an executor or administrator
neglects to render his account and settle the estate according
to law, or to perform an order or judgment of the court, or a
duty expressly provided by these rules, or absconds, or
becomes insane, or otherwise incapable or insuitable to
discharge the trust, the court may remove him, or in its
discretion, may permit him to resign. When an executor or
administrator dies, resign, or is removed the remaining
executor or administrator may administer the the trust alone,
unless the court grants letters to someone to act with him. If
pg. 9
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
there is no remaining executor or administrator,
administration may be to any suitable person.
Section 3. Acts before revocation, resignation, or
removal to be valid. — The lawful acts of an executor or
administrator before the revocation of his letters
testamentary or of administration, or before his resignation
or removal, shall have the like validity as if there had been no
such revocation, resignation, or removal.
Section 4. Powers of new executor or administrator.
Renewal of license to sell real estate. — The person to whom
letters testamentary or of administration are granted after
the revocation of former letters, or the death, resignation, or
removal of a former executor or administrator, shall have the
like powers to collect and settle the estate not administered
that the former executor or administrator had, and may
prosecute or defend actions commenced by or against the
former executor or administrator, and have execution on
judgments recovered in the name of such former executor or
administrator. An authority granted by the court to the
former executor or administrator for the sale or mortgage of
real estate may be renewed in favor of such person without
further notice or hearing.
RULE 83
Inventory and Appraisal. Provision for Support of Family
Section 1. Inventory and appraisal to be returned
within three months. — Within three (3) months after his
appointment every executor or administrator shall return to
the court a true inventory and appraisal of all real and
personal estate of the deceased which has come into his
possession or knowledge. In the appraisement of such estate,
the court may order one or more of the inheritance tax
appraisers to give his or their assistance.
NOTE: The 3-month period is not mandatory and the court retains
jurisdiction even if the inventory is filed after such period, but such
delay, if not satisfactorily explained, may be a ground for the removal
of the administrator.
Certain article not to be inventoried
Section 2. The wearing apparel of the surviving husband
or wife and minor children., the marriage bed and bedding,
and such provisions and other articles as will necessarily be
consumed in the substinence of the family of the deceased,
under the direction of the court, shall not be considered as
assets, nor administered as such, and shall not be included in
the inventory.
Those properties which are not considered as assets of the estate
need not be included in the inventory.
The court has the power to determine which of the properties
should be included and which should not be, in the inventory of the
estate, as long as there is no dispute as to the title of these properties
otherwise the law mandates the heirs or the executor that there be a
separate civil action filed insofar as the title of the property is
concerned.
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NOTE: Property claimed by third persons may be included in the
inventory as part of the assets of the estate and the probate court may
order such inclusion, but such order of the probate court is only prima
facie determination and does not preclude the claimants from
maintaining an ordinary civil action for the determination of title.
Allowance to widow and family
Section 3. The widow and minor or incapacitated
children of a deceased person, during the settlement of the
estate, shall receive therefrom, under the direction of the
court, such allowance as are provided by law.
NOTE: Section 3 allows support to spouse and children even tho
children are already of majority age. Such support and allowance are
subject to collation and deductible from the share in the inheritance of
the heirs insofar as they exceed the fruits or rents pertaining them.
Grandchildren are not entitled to support and allowance from the
estate.
RULE 84
General Powers and Duties of Executors and Administrators
Section 1. Executor or administrator to have access to
partnership books and property. How right enforced. — The
executor or administrator of the estate of a deceased partner
shall at all times have access to, and may examine and take
copies of, books and papers relating to the partnership
business, and make examine and make invoices of the
property belonging to such partnership; and the surviving
partner or partners, on request, shall exhibit to him all such
books, papers, and property in their hands or control. On the
written application of such executor or administrator, the
court having jurisdiction of the estate may order any such
surviving partner or partners to freely permit the exercise of
the rights, and to exhibit the books, papers, and property, as
in this section provided, and may punish any partner failing
to do so for contempt.
Section 2. Executor or administrator to keep buildings
in repair. — An executor or administrator shall maintain in
tenanble repair the houses and other structures and fences
belonging to the estate, and deliver the same in such repair
to the heirs or devisees when directed so to do by the court.
Section 3. Executor or administrator to retain whole
estate to pay debts, and to administer estate not willed. —
An executor or administrator shall have the right to the
possession and management of the real as well as the
personal estate of the deceased so long as it is necessary for
the payment of the debts and the expenses of administration.
Powers of the Executor and Administrator
1. To have access to, and examine and take copies of books and
papers relating to the partnership in case of a deceased partner;
2. To examine and make invoices of the property belonging to the
partnership in case of a deceased partner.
3. To maintain in tenantable repair, houses and other structures
and fences and deliver the same in such repair to the heirs or
devisees when directed so to do by the court;
pg. 10
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
4. To make improvements on the properties under administration
with the necessary court approval except for necessary repairs;
and
5. To possess and manage the estate when necessary:
a. For the payment of debts; and
b. For the payment of expenses of administration.
NOTE: The extent of the powers of the executor and administrator
covers only those powers of administration.
The power to sell is an act of ownership or strict dominion and
therefore not a power of an administrator. However, the administrator
or executor can sell and mortgage properties of the estate provided
there must be an order from the court. If the property was mortgaged
by the executor or administrator but the same is without the approval
of the court, all proceedings thereof, including the title of the highest
bidder, is considered null and void.
Any act of the executor or administrator which involves the sale,
mortgage or other encumbrance of a property of the estate requires
the approval of the court otherwise it is deemed null and void. In doing
so, the law says that the executor or administrator, must file a written
petition therefor.
The following are grounds to merit the approval of sale or
mortgage of the property of the estate:
1. If necessary for the payment of debts of the estate including
taxes;
2. If necessary to answer for the expenses of administration.
In the written petition for the sale, mortgage or other
encumbrance of property of the estate, the following are the other
requirements after the filing thereof:
1. Notice must be sent to persons interested, setting forth the
nature of the petition, the time, date and place of hearing and
the cause of sale;
2. Cause the publication thereof.
If there are objections to the petition of sale, the oppositor, after
receipt of such notice, may post a bond in an amount to be fixed by the
court to prevent the sale, conditioned on the payment of the debts of
the estate.
RULE 85
Accountability and Compensation of Executors and Administrators
Section 1. Executor or administrator chargeable with
all estate and income. — Except as otherwise expressly
provided in the following sections, every executor or
administrator is chargeable in his account with the whole of
the estate of the deceased which has come into his
possession, at the value of the appraisement contained in the
inventory; with all the interest, profit, and income of such
estate; and with the proceeds of so much of the estate as is
sold by him, at the price at which it was sold.
Section 2. Not to profit by increase or lose by decrease
in value. — No executor or administrator shall profit by the
increase, or suffer loss by the decrease or destruction,
without his fault, of any part of the estate. He must account
for the excess when he sells any part of the estate for more
than the appraisement, and if any is sold for the less than the
appraisement, he is not responsible for the loss, if the sale has
justly made. If he settles any claim against the estate for less
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than its nominal value, he is entitled to charge in his account
only the amount he actually paid on the settlement.
Section 3. When not accountable for debts due estate.
— No executor or administrator shall be accountable for
debts due the deceased which remain uncollected without his
fault.
Section 4. Accountable for income from realty used by
him. — If the executor or administrator uses or occupies any
part of the real estate himself, he shall account for it as may
be agreed upon between him and the parties interested, or
adjusted by the court with their assent; and if the parties do
not agree upon the sum to be allowed, the same may be
ascertained by the court, whose determination in this respect
shall be final.
Section 5. Accountable if he neglects or delays to raise
or pay money. — When an executor or administrator
neglects or unreasonably delays to raise money, by collecting
the debts or selling the real or personal estate of the
deceased, or neglects to pay over the money he has in his
hands, and the value of the estate is thereby lessened or
unnecessary cost or interest accrues, or the persons
interested suffer loss, the same shall be deemed waste and
the damage sustained may be charged and allowed against
him in his account, and he shall be liable therefor on his bond.
Section 6. When allowed money paid as cost. — The
amount paid by an executor or administrator for costs
awarded against him shall be allowed in his administration
account, unless it appears that the action or proceeding in
which the costs are taxed was prosecuted or resisted without
just cause, and not in good faith.
Section 7. What expenses and fees allowed executor or
administrator. Not to charge for services as
attorney. Compensation provided by will controls unless
renounced. — An executor or administrator shall be allowed
the necessary expenses the care, management, and
settlement of the estate, and for his services, four pesos per
day for the time actually and necessarily employed, or a
commission upon the value of so much of the estate as comes
into his possession and is finally disposed of by him in the
payment of debts, expenses, legacies, or distributive shares,
or by delivery to heirs or devisees, of two per centum of the
first five thousand pesos of such value, one per centum of so
much of such value as exceeds five thousand pesos and does
not exceed thirty thousand pesos, one-half per centum of so
much of such value as exceed one hundred thousand pesos.
But in any special case, where the estate is large, and the
settlement has been attended with great difficulty, and has
required a high degree of capacity on the part of the executor
or administrator, a greater sum may be allowed. If objection
to the fees allowed be taken, the allowance may be re-
examined on appeal.
If there are two or more executors or administrators, the
compensation shall be apportioned among them by the court
according to the services actually rendered by them
respectively.
When the executors or administrator is an attorney, he
shall not charge against the estate any professional fees for
legal services rendered by him.
pg. 11
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
When the deceased by will makes some other provision
for the compensation of his executor, that provision shall be
a full satisfaction for his services unless by a written
instrument filed in the court he renounces all claim to the
compensation provided by the will.
Section 8. When executor or administrator to render
account. — Every executor or administrator shall render an
account of his administration within one (1) year from the
time of receiving letters testamentary or of administration,
unless the court otherwise directs because of extensions of
time for presenting claims against, or paying the debts of, the
estate, or for disposing of the estate; and he shall render such
further accounts as the court may require until the estate is
wholly settled.
Section 9. Examinations on oath with respect to
account — The court may examine the executor or
administrator upon oath with respect to every matter
relating to any account rendered by him, and shall so
examine him as to the correctness of his account before the
same is allowed, except when no objection is made to the
allowance of the account and its correctness is satisfactorily
established by competent proof. The heirs, legatees,
distributees, and creditors of the estate shall have the same
privilege as the executor or administrator of being examined
on oath on any matter relating to an administration account.
Section 10. Account to be settled on notice. — Before
the account of an executor or administrator is allowed, notice
shall be given to persons interested of the time and place of
examining and allowing the same; and such notice may be
given personally to such persons interested or by
advertisement in a newspaper or newspapers, or both, as the
court directs.
Section 11. Surety on bond may be party to accounting.
— Upon the settlement of the account of an executor or
administrator, a person liable as surety in respect to such
account may, upon application, be admitted as party to such
accounting.
RULE 86
Claims Against Estate
Section 1. Notice to creditors to be issued by court. —
Immediately after granting letters testamentary or of
administration, the court shall issue a notice requiring all
persons having money claims against the decedent to file
them in the office of the clerk of said court.
Section 2. Time within which claims shall be filed. — In
the notice provided in the preceding section, the court shall
estate the time for the filing of claims against the estate,
which shall not be more than twelve (12) not less than six (6)
months after the date of the first publication of the notice.
However, at any time before an order of distribution is
entered, on application of a creditor who has failed to file his
claim within the previously limited, the court may, for cause
shown and on such terms as are equitable, allow such claim
to be filed within a time not exceeding one (1) month.
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Statute of Non-Claims
The period fixed in Sec. 2 for filing of claims supersedes the
ordinary statute of limitations. The period for filing of such claims starts
to run from the date of the first publication of the notice referred in
Sec 1 and runs even against the State.
Statute of Non-claims: the filing of claims contemplated therein
should be during a period of 6 months after the date of the first
publication of the notice down to the 12 th month. The range of said
period for filing of claims and the period once fixed by the court is
mandatory.
When creditors may file a claim beyond the statute of non-claims
The court may, for good cause shown and on terms which are
equitable, may grant a one-month period for a creditor to file a claim
which he failed to file during the original period granted for the filing
of claims. Such motion for leave to file a claim beyond the original
period must be filed at any time during the administration proceedings
provided no order of distribution has yet been entered.
“One-month period.” Said claims must be filed within a time not
exceeding one month from the order of the court allowing the filing of
the claim.
RATIONALE of Statute of Non-Claims
This is to ensure the speedy settlement of the estate of the
decedent in favor of the creditors and such other persons entitled to
receive under the estate.
With respect to money claims, the petition must be filed before
the clerk of court of the court where the case is pending with the
corresponding vouchers and proofs of the claim attached thereto. A
copy of the claim must be served to the executor or administrator.
Section 3. Publication of notice to creditors. — Every
executor or administrator shall, immediately after the notice
to creditors is issued, cause the same to be published three
(3) weeks successively in a newspaper of general circulation
in the province, and to be posted for the same period in four
public places in the province and in two public places in the
municipality where the decedent last resided.
Section 4. Filing of copy of printed notice. — Within ten
(10) days after the notice has been published and posted in
accordance with the preceding section, the executor or
administrator shall file or cause to be filed in the court a
printed copy of the notice accompanied with an affidavit
setting forth the dates of the first and last publication thereof
and the name of the newspaper in which the same is printed.
NOTE:
 A notice to creditors to file their claims is not proper if only a
special administrator has been appointed as a special
administrator is generally not empowered to pay debts of the
deceased and his bond is not conditioned upon the payment of
such debts.
 Publication of notice to creditors is constructive notice to all – the
proceeding for the filing of claims is in rem.
 Period for filing of claims starts to run from the first publication of
the notice to creditors, unless publication is effected by the
administrator or the executor – result would be to extend time for
presentation of claims.
pg. 12
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
 Where a claimant with a claim under a judgment for money
against the deceased files a petition for the issuance of letters of
administration over the estate of the decedent within the ten-
year period from the finality of its judgment, and after said ten-
year period filed a claim against the estate of the deceased under
administration, said claim retroacts to the date of the filing of the
petition for letters of administration and, therefore, has not
prescribed.
Claims which must be filed under the notice.
If not filed, barred; exceptions
Section 5. All claims for money against the decent,
arising from contract, express or implied, whether the same
be due, not due, or contingent, all claims for funeral expenses
and expense for the last sickness of the decedent, and
judgment for money against the decent, must be filed within
the time limited in the notice; otherwise they are barred
forever, except that they may be set forth as counterclaims
in any action that the executor or administrator may bring
against the claimants. Where an executor or administrator
commences an action, or prosecutes an action already
commenced by the deceased in his lifetime, the debtor may
set forth by answer the claims he has against the decedent,
instead of presenting them independently to the court as
herein provided, and mutual claims may be set off against
each other in such action; and if final judgment is rendered in
favor of the defendant, the amount so determined shall be
considered the true balance against the estate, as though the
claim had been presented directly before the court in the
administration proceedings. Claims not yet due, or
contingent, may be approved at their present value.
Claims which may be filed
Money claims will not only involve debts which are due and
demandable. It may include contingent claims which may be claimed
against the estate.
The claimant for a contingent money claim must execute an
affidavit stating the particulars thereof.
Other claims which may be filed against the estate of the decedent
are:
1. Money claims arising from contracts, whether express or
implied, whether due, not due or contingent;
2. Funeral expenses;
3. Expenses of the last sickness of the decedent;
4. Judgment for money against the decedent.
Contingent claims
One which depends for its demandability upon the happening of
a future uncertain event. This would include obligations subject to a
suspensive condition as understood in civil law.
Liquidated debts are those claims which are already due and
demandable.
Claims which are not yet due, or are contingent, may be approved
at their present value but as no payment thereof can yet be authorized
by the court until their demandability arises, a portion of the estate
may be reserved for the payment of such claims as provided in Secs. 4
and 5, Rule 88
NOTE: If the claim is filed beyond the statute of non-claims, the
person who claims is barred forever. However, the creditor barred by
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the Statute of non-claim may file a counterclaim in any suit that the
executor or administrator may bring against such creditor.
Section 6. Solidary obligation of decedent. — Where
the obligation of the decedent is solidary with another
debtor, the claim shall be filed against the decedent as if he
were the only debtor, without prejudice to the right of the
estate to recover contribution from the debtor. In a joint
obligation of the decedent, the claim shall be confined to the
portion belonging to him.
Section 7. Mortgage debt due from estate. — A creditor
holding a claim against the deceased secured by mortgage or
other colateral security, may abandon the security and
prosecute his claim in the manner provided in this rule, and
share in the general distribution of the assets of the estate;
or he may foreclose his mortgage or realize upon his security,
by action in court, making the executor or administrator a
party defendant, and if there is a judgment for a deficiency,
after the sale of the mortgaged premises, or the property
pledged, in the foreclosure or other proceeding to realize
upon the security, he may claim his deficiency judgment in
the manner provided in the preceding section or he may rely
upon his mortgage or other security alone, and foreclosure
the same at any time within the period of the statute of
limitations, and in that event he shall not be admitted as a
creditor, and shall receive no share in the distribution of the
other assets of estate; but nothing herein contained shall
prohibit the executor or administrator from redeeming the
property mortgaged or pledged, by paying the debt for which
it is held as security, under the direction of the court, if the
court shall adjudge it to be for the best interest of the estate
that such redemption shall be made.
Section 8. Claim of executor or administrator against
an estate. — If the executor or administrator has a claim
against the estate he represents, he shall give notice thereof,
in writing, to the court, and the court shall appoint a special
administrator, who shall, in the adjustment of such claim,
have the same power and be subject to the same liability as
the general administrator or executor in the settlement of
other claims. The court may order the executor or
administrator to pay to the special administrator necessary
funds to defend such claim.
Section 9. How to file a claim. Contents thereof. Notice
to executor or administrator. — A claim may be filed by
delivering the same with the necessary vouchers to the clerk
of court and by serving a copy thereof on the executor or
administrator. If the claim be founded on a bond, bill, note,
or any other instrument, the original need not be filed, but a
copy thereof with all indorsements shall be attached to the
claim and filed therewith. On demand, however, of the
executor or administrator, or by order of the court or judge,
the original shall be exhibited, unless it be list or destroyed,
in which case the claimant must accompany his claim with
affidavit or affidavits containing a copy or particular
description of the instrument and stating its loss or
destruction. When the claim is due, it must be supported by
affidavit stating the amount justly due, that no payments
have been made thereon which are not credited, and that
there are no offsets to the same, to the knowledge of the
affiant. If the claim is not due, or is contingent, when filed, it
must also be supported by affidavits stating the particulars
pg. 13
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
thereof. When the affidavit is made by a person other than
the claimant, he must set forth therein the reason why it is
not made by the claimant. The claim once filed shall be
attached to the record of the case in which the letters
testamentary or of administration were issued, although the
court, in its discretion, and as a matter of convenience, may
order all the claims to be collected in a separate folder.
Section 10. Answer of executor or
administrator. Offsets —Within fifteen (15) days after
service of a copy of the claim on the executor or
administrator, he shall file his answer admitting or denying
the claim specifically, and setting forth the admission or
denial. If he has no knowledge sufficient to enable him to
admit or deny specifically, he shall state such want of
knowledge. The executor or administrator in his answer shall
allege in offset any claim which the decedent before death
had against the claimant, and his failure to do so shall bar the
claim forever. A copy of the answer shall be served by the
executor or administrator on the claimant. The court in its
discretion may extend the time for filing such answer.
Section 11. Disposition of admitted claim. — Any claim
admitted entirely by the executor or administrator shall
immediately be submitted by the clerk to the court who may
approve the same without hearing; but the court, in its
discretion, before approving the claim, may order that known
heirs, legatees, or devisees be notified and heard. If upon
hearing, an heir, legatees, or devisee opposes the claim, the
court may, in its discretion, allow him fifteen (15) days to file
an answer to the claim in the manner prescribed in the
preceding section.
Section 12. Trial of contested claim. — Upon the filing
of an answer to a claim, or upon the expiration of the time
for such filing, the clerk of court shall set the claim for trial
with notice to both parties. The court may refer the claim to
a commissioner.
Section 13. Judgment appealable. — The judgment of
the court approving or disapproving a claim, shall be filed
with the record of the administration proceedings with notice
to both parties, and is appealable as in ordinary cases. A
judgment against the executor or administrator shall be that
he pay, in due course of administration, the amount
ascertained to be due, and it shall not create any lien upon
the property of the estate, or give to the judgment creditor
any priority of payment.
Section 14. Costs. — When the executor or
administrator, in his answer, admits and offers to pay part of
a claim, and the claimant refuses to accept the amount
offered in satisfaction of his claim, if he fails to obtain a more
favorable judgment, he cannot recover costs, but must pay to
the executor or administrator costs from the time of the offer.
Where an action commenced against the deceased for
money has been discontinued and the claim embraced
therein presented as in this rule provided, the prevailing party
shall be allowed the costs of his action up to the time of its
discontinuance.
NOTE: The claims must be filed before the court for approval.
Hearing is not required by the Rules to be conducted. However, it is
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required that the heirs, legatee and devisees be notified of these
claims.
Notice to the heirs, legatee and devisees is necessary because in
case there be any oppositors, the court must set a date for the
hearing of such claims and opposition or even refer the case to a
commissioner.
RULE 87
Actions By and Against Executors and Administrators
Section 1. Actions which may and which may not be
brought against executor or administrator. — No action
upon a claim for the recovery of money or debt or interest
thereon shall be commenced against the executor or
administrator; but to recover real or personal property, or an
interest therein, from the estate, or to enforce a lien thereon,
and actions to recover damages for an injury to person or
property, real or personal, may be commenced against him.
NOTE: A case cannot be filed against the executor or
administrator except if the action survives. The following actions that
survive can be filed:
1. Actions for recovery or real or personal property;
2. Actions to enforce a lien;
3. An action to recover damages arising from tort or quasi-delict.
For actions that do not survive, such as collection of sum of
money, the same cannot be filed against the executor or administrator,
the claimant may file an action as Money claim against the estate
proceedings of the decedent by virtue of the statute of Non-claims.
Executor or administrator may bring or
defend actions which survive.
Section 2. For the recovery or protection of the property
or rights of the deceased, an executor or administrator may
bring or defend, in the right of deceased, actions for causes
which survive.
Section 3. Heir may not sue until shall assigned —
When an executor or administrator is appointed and assumes
the trust, no action to recover the title or possession of lands
or for damages done to such lands shall be maintained
against him by an heir or devisee until there is an order of the
court assigning such lands to such heir or devisee or until the
time allowed for paying debts has expired.
Section 4. Executor or administrator may compound
with debtor. — Within the approval of the court, an executor
or administrator may compound with the debtor of the
deceased for a debt due, and may give a discharge of such
debt on receiving a just dividend of the estate of the debtor.
Section 5. Mortgage due estate may be foreclosed. —
A mortgage belonging to the estate of a deceased person, as
mortgagee or assignee of the right or a mortgage, may be
foreclosed by the executor or administrator.
Section 6. Proceedings when property concealed,
embezzled, or fraudulently conveyed. — If an executor or
administrator, heir, legatee, creditor or other individual
interested in the estate of the deceased, complains to the
pg. 14
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
court having jurisdiction of the estate that a person is
suspected of having concealed, embezzled, or conveyed away
any of the money, goods, or chattels of the deceased, or that
such person has in his possession or has knowledge of any
deed, conveyance, bond, contract, or other writing which
contains evidence of or tends or discloses the right, title,
interest, or claim of the deceased, the court may cite such
suspected person to appear before it any may examine him
on oath on the matter of such complaint; and if the person so
cited refuses to appear, or to answer on such examination or
such interrogatories as are put to him, the court may punish
him for contempt, and may commit him to prison until he
submits to the order of the court. The interrogatories put any
such person, and his answers thereto, shall be in writing and
shall be filed in the clerk's office.
Section 7. Person entrusted with estate compelled to
render account. — The court, on complaint of an executor or
administrator, may cite a person entrusted by an executor or
administrator with any part of the estate of the deceased to
appear before it, and may require such person to render a full
account, on oath, of the money, goods, chattels, bonds,
account, or other papers belonging to such estate as came to
his possession in trust for such executor or administrator, and
of his proceedings thereon; and if the person so cited refuses
to appear to render such account, the court may punish him
for contempt as having disobeyed a lawful order of the court.
Embezzlement before letters issued
Section 8. If a person, before the granting of letters
testamentary or of administration on the estate of the
deceased, embezzles or alienates any of the money, goods,
chattels, or effects of such deceased, such person shall be
liable to an action in favor of the executor or administrator of
the estate for double the value of the property sold,
embezzled, or alienated, to be recovered for the benefit of
such estate.
NOTE: This provision refers to the liability of a person who
embezzles or alienates properties of the decedent before the granting
of the letters administration or testamentary.
Double Value Rule
A person who, before the granting of letters testamentary or of
administration on the estate of the deceased, embezzles or alienates
any of the money, goods, chattels, or effects of such deceased, shall be
liable to an action in favor of the executor or administrator of the
estate for double the value of the property sold, embezzled, or
alienated, to be recovered for the benefit of such estate.
Note: The rule contemplates of an embezzlement or alienation
which causes the estate to lose the property converted by the
wrongdoer.
Property fraudulently conveyed by deceased may be recovered.
When executor or administrator must bring action
Section 9. When there is a deficiency of assets in the
hands of an executor or administrator for the payment of
debts and expenses of administration, and the deceased in
his lifetime had conveyed real or personal property, or a right
or interest therein, or an debt or credit, with intent to defraud
his creditors or to avoid any right, debt, or duty; or had so
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conveyed such property, right, interest, debt or credit that by
law the conveyance would be void as against his creditors,
and the subject of the attempted conveyance would be liable
to attachment by any of them in his lifetime, the executor or
administrator may commence and prosecute to final
judgment an action for the recovery of such property, right,
interest, debt, or credit for the benefit of the creditors; but he
shall not be bound to commence the action unless on
application of the creditors of the deceased, not unless the
creditors making the application pay such part of the costs
and expenses, or give security therefor to the executor or
administrator, as the court deems equitable.
When creditor may bring action.
Lien for costs
Section 10. When there is such a deficiency of assets,
and the deceased in his lifetime had made or attempted such
a conveyance, as is stated in the last preceding section, and
the executor or administrator has not commenced the action
therein provided for, any creditor of the estate may, with the
permission of the court, commence and prosecute to final
judgment, in the name of the executor or administrator, a like
action for the recovery of the subject of the conveyance or
attempted conveyance for the benefit of the creditors. But
the action shall not be commenced until the creditor has filed
in a court a bond executed to the executor or administrator,
in an amount approved by the judge, conditioned to
indemnify the executor or administrator against the costs
and expenses incurred by reason of such action. Such creditor
shall have a lien upon any judgment recovered by him in the
action for such costs and other expenses incurred therein as
the court deems equitable. Where the conveyance or
attempted conveyance had been made by the deceased in his
lifetime in favor of the executor or administrator, the action
which a credit may bring shall be in the name of all the
creditors, and permission of the court and filing of bond as
above prescribed, are not necessary.
NOTE: Actions to recover fraudulently conveyed property of the
deceased may be filed by the executor or administrator or by the
creditor himself against the person to whom the conveyance was
made.
If the executor or administrator fails to bring such action, any of
the creditors may bring suit in his own name, with leave of court, upon
the filing of an indemnity bond for such costs and expenses incurred
by the executor as may arise from the suit. The bond must be in the
amount approved by the court.
The filing of claims does not require the filing of a certification of
non-forum shopping.
RULE 88
Payment of the Debts of the Estate
Section 1. Debts paid in full if estate sufficient. – If,
after hearing all the money claims against the estate, and
after ascertaining the amount of such claims, it appears that
there are sufficient assets to pay the debts, the executor or
administrator pay the same within the time limited for that
purpose.
pg. 15
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
Section 2. Part of estate from which debt paid when
provision made by will. — If the testator makes provision by
his will, or designates the estate to be appropriated for the
payment of his debts, the expenses of administration, or the
family expenses, they shall be paid according to the
provisions of the will; but if the provision made by the will or
the estate appropriated, is not sufficient for that purpose,
such part of the estate of the testator, real or personal, as is
not disposed of by will, if any shall be appropriated for that
purpose.
Section 3. Personalty first chargeable for debts, then
realty. — The personal estate of the deceased not disposed
of by will shall be first chargeable with the payment of debts
and expenses; and if said personal estate is not sufficient for
tat purpose, or its sale would redound to the detriment of the
participants for the estate, the whole of the real estate not
dispose of by will, or so much thereof as is necessary, may be
sold, mortgaged, or otherwise encumbered for that purpose
by the executor or administrator, after obtaining the
authority of the court therefor. Any deficiency shall be met by
contributions in accordance with the provisions of section 6
of this rule.
Section 4. Estate to be retained to meet contingent
claims. — If the court is satisfied that a contingent claim duly
filed is valid, it may order the executor or administrator to
retain in his hands sufficient estate to pay such contingent
claim when the same becomes absolute, or if the estate is
insolvent, sufficient to pay a portion equal to the dividend of
the other creditors.
Section 5. How contingent claim becoming absolute in
two years allowed and paid. Action against distributees
later. — If such contingent claim becomes absolute and is
presented to the court, or to the executor or administrator,
within two (2) years from the time limited for other creditors
to present their claims, it may be allowed by the court if not
disputed by the executor or administrator and, if disputed, it
may be proved and allowed or disallowed by the court as the
facts may warrant. If the contingent claim is allowed, the
creditor shall receive payment to the same extent as the
other creditors if the estate retained by the executor or
administrator is sufficient. But if the claim is not so presented,
after having become absolute, within said two (2) years, and
allowed, the assets retained in the hands of the executor or
administrator, not exhausted in the payment of claims, shall
be disturbed by the order of the court to the persons entitled
to the same; but the assets so distributed may still be applied
to the payment of the claim when established, and the
creditor may maintain an action against the distributees to
recover the debt, and such distributees and their estates shall
be liable for the debt in proportion to the estate they have
respectively received from the property of the deceased.
Section 6. Court to fix contributive shares where
devisees, legalitees, or heirs have been possession. —
Where devisees, legalitees, or heirs have entered into
possession of portions of the estate before the debts and
expenses have been settled and paid, and have become liable
to contribute for the payment of such debts and expenses,
the court having jurisdiction of the estate may, by order for
that purpose, after hearing, settle the amount of their several
liabilities, and order how much and in what manner each
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person shall contribute, and may issue execution as
circumstances require.
Section 7. Order of payment if estate insolvent — If the
assets which can be appropriated for the payment of debts
are not sufficient for that purpose, the executor or
administrator shall pay the debts against the estate,
observing the provisions of Articles 1059 and 2239 to 2251 of
the Civil Code.
Section 8. Dividends to be paid in proportion to claims.
— If there are no assets sufficient to pay the credits of any
once class of creditors after paying the credits entitled to
preference over it, each creditor within such class shall be
paid a dividend in proportion to his claim. No creditor of any
one class shall receive any payment until those of the
preceding class are paid.
Section 9. Estate of insolvent non-resident, how
disposed of. — In case administration is taken in the
Philippine of the estate of a person who was at the time of
his death an inhabitant of another country, and who died
insolvent, hi estate found in the Philippines shall, as far as
practicable, be so disposed of that his creditors here and
elsewhere may receive each an equal share, in proportion to
their respective credits.
Section 10. When and how claim proved outside the
Philippines against insolvent resident's estate paid. — If it
appears to the court having jurisdiction that claims have
been duly proven in another country against the estate of an
insolvent who was at the time of his death an inhabitant of
the Philippines, and that the executor or administrator in the
Philippines had knowledge of the presentation of such claims
in such country and an opportunity to contest their
allowance, the court shall receive a certified list of such
claims, when perfected in such country, and add the same to
the list of claims proved against the deceased person in the
Philippines so that a just distribution of the whole estate may
be made equally among all its creditors according to their
respective claims; but the benefit of this and the preceding
sections shall not be extended to the creditors in another
country if the property of such deceased person there found
is not equally apportioned to the creditors residing in the
Philippines and the other creditor, according to their
respective claims.
Section 11. Order for payment of debts. — Before the
expiration of the time limited for the payment of the debts,
the court shall order the payment thereof, and the
distribution of the assets received by the executor or
administrator for that purpose among the creditors, as the
circumstances of the estate require and in accordance with
the provisions of this rule.
Section 12. Orders relating to payment of debts where
appeal is taken. — If an appeal has been taken from a
decision of the court concerning a claim, the court may
suspend the order for the payment of the debts or may order
the distributions among the creditors whose claims are
definitely allowed, leaving in the hands of the executor or
administrator sufficient assets to pay the claim disputed and
appealed. When a disputed claim is finally settled the court
having jurisdiction of the estate shall order the same to be
pg. 16
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
paid out of the assets retained to the same extent and in the
same proportion with the claims of other creditors.
NOTE: Settlement of estate is an action which allows multiple
appeals. The grant of the court as far as the claims are concerned is
likewise an appealable order.
Payment of the debts of the estate requires court order and
shall be made depending on the solvency or insolvency of the
estate. Thus, you must first determine whether or not the estate is
solvent to answer for these debts.
If the estate is solvent, the payment of the debts shall be
made in accordance with the wishes of the testator.
If the estate is insolvent, the payment of debts must be based
on the preference of credits under the NCC. In preference of credits,
the property involved must first be determined whether the same
is personal, real property, or any other property. However,
irrespective of the kind of property involved, taxes due to the
government is always preferred to be paid first.
Time for paying debts and legacies
The time for payment shall not exceed 1 year in the first
instance, after issuance of the letters testamentary or of
administration within which to wind up the estate of the deceased.
The court may extend the period, after hearing and notice, on
the following conditions:
1. The extension must not exceed 6 months for a single
extension; and
2. The whole period allowed to the original executor and
administrator should not exceed 2 years.
Section 13. When subsequent distribution of assets
ordered. — If the whole of the debts are not paid on the first
distribution, and if the whole assets are not distributed, or
other assets afterwards come to the hands of the executor or
administrator, the court may from time to time make further
orders for the distributions of assets.
Section 14. Creditors to be paid in accordance with
terms of order. — When an order is made for the distribution
of assets among the creditors, the executor or administration
shall, as soon as the time of payment arrives, pay the
creditors the amounts of their claims, or the dividend
thereon, in accordance with the terms of such order.
Section 15. Time for paying debts and legacies fixed, or
extended after notice, within what periods. – On granting
letters testamentary or administration the court shall allow
to the executor or administrator a time for disposing of the
estate and paying the debts and legacies of the deceased,
which shall not, in the first instance, exceed one (1) year; but
the court may, on application of the executor or
administrator and after hearing on such notice of the time
and place therefor given to all persons interested as it shall
direct, extend the time as the circumstances of the estate
require not exceeding six (6) months for a single extension
not so that the whole period allowed to the original executor
or administrator shall exceed two (2) years.
Section 16. Successor of dead executor or
administrator may have time extended on notice within
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certain period. — When an executor or administrator dies,
and a new administrator of the same estate is appointed, the
court may extend the time allowed for the payment of the
debts or legacies beyond the time allowed to the original
executor or administrator, not exceeding six (6) months at a
time and not exceeding six (6) months beyond the time which
the court might have allowed to such original executor or
administrator; and notice shall be given of the time and place
for hearing such application, as required in the last preceding
section.
RULE 89
Sales, Mortgages, and Other Encumbrances
of Property of Decedent
Section 1. Order of sale of personalty. — Upon the
application of the executor or administrator, and on written
notice to the heirs and other persons interested, the court
may order the whole or a part of the personal estate to be
sold, if it appears necessary for the purpose of paying debts,
expenses of administration, or legacies, or for the
preservation of the property.
Section 2. When court may authorize sale, mortgage,
or other encumbrance of realty to pay debts and legacies
through personalty not exhausted. — When the personal
estate of the deceased is not sufficient to pay the debts,
expenses of administration, and legacies, or where the sale
of such personal estate may injure the business or other
interests of those interested in the estate, and where a
testator has not otherwise made sufficient provision for the
payment of such debts, expenses, and legacies, the court, on
the application of the executor or administrator and on
written notice of the heirs, devisees, and legatees residing in
the Philippines, may authorize the executor or administrator
to sell, mortgage, or otherwise encumber so much as may be
necessary of the real estate, in lieu of personal estate, for the
purpose of paying such debts, expenses, and legacies, if it
clearly appears that such sale, mortgage, or encumbrance
would be beneficial to the persons interested; and if a part
cannot be sold, mortgaged, or otherwise encumbered
without injury to those interested in the remainder, the
authority may be for the sale, mortgage, or other
encumbrance of the whole of such real estate, or so much
thereof as is necessary or beneficial under the circumstances.
Section 3. Persons interested may prevent such
sale, etc., by giving bond. — No such authority to sell,
mortgage, or otherwise encumber real or personal estate
shall be granted if any person interested in the estate gives a
bond, in a sum to be fixed by the court, conditioned to pay
the debts, expenses of administration, and legacies within
such time as the court directs; and such bond shall be for the
security of the creditors, as well as of the executor or
administrator, and may be prosecuted for the benefit of
either.
Section 4. When court may authorize sale of estate as
beneficial to interested persons. Disposal of proceeds. —
When it appears that the sale of the whole or a part of the
real or personal estate, will be beneficial to the heirs,
devisees, legatees, and other interested persons, the court
may, upon application of the executor or administrator and
pg. 17
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
on written notice to the heirs, devisees, and legatees who are
interested in the estate to be sold, authorize the executor or
administrator to sell the whole or a part of said estate,
although not necessary to pay debts, legacies, or expenses of
administration; but such authority shall not be granted if
inconsistent with the provisions of a will. In case of such sale,
the proceeds shall be assigned to the persons entitled to the
estate in the proper proportions.
Section 5. When court may authorize sale, mortgage,
or other encumbrance of estate to pay debts and legacies in
other countries. — When the sale of personal estate, or the
sale, mortgage, or other encumbrance of real estate is not
necessary to pay the debts, expenses of administration, or
legacies in the Philippines, but it appears from records and
proceedings of a probate court in another country that the
estate of the deceased in such other country is not sufficient
to pay the debts, expenses of administration, and legacies
there, the court here may authorize the executor or
administrator to sell the personal estate or to sell, mortgage,
or otherwise encumber the real estate for the payment of
debts or legacies in the other country, in same manner as for
the payment of debts or legacies in the Philippines.
Section 6. When court may authorize sale, mortgage,
or other encumbrance of realty acquired on execution or
foreclosure. — The court may authorize an executor or
administrator to sell mortgage, or otherwise encumber real
estate acquired by him on execution or foreclosure sale,
under the same cicumstances and under the same
regulations as prescribed in this rule for the sale, mortgage,
or other encumbrance of other real estate.
Section 7. Regulation for granting authority to sell,
mortgage, or otherwise encumber estate. — The court
having jurisdiction of the estate of the deceased may
authorize the executor or administrator to sell personal
estate, or to sell, mortgage, or otherwise encumber real
estate, in cases provided by these rules and when it appears
necessary or beneficial under the following regulations.
(a) The executor or administrator shall file a written
petition setting forth the debts due from the deceased, the
expenses of administration, the legacies, the value of the
personal estate, the situation of the estate to be sold,
mortgaged, or otherwise encumbered, and such other facts
as show that the sale, mortgage, or other encumbrance is
necessary or beneficial.
(b) The court shall thereupon fix a time and place for
hearing such petition, and cause notice stating the nature of
the petition, the reasons for the same, and the time and place
of hearing, to be given personally or by mail to the persons
interested, and may cause such further notice to be given, by
publication or otherwise, as it shall deem proper;
(c) If the court requires it, the executor or administrator
shall give an additional bond, in such sum as the court directs,
conditioned that such executor or administrator will account
for the proceeds of the sale, mortgage, or other
encumbrance;
(d) If the requirements in the preceding subdivisions of
this section have been complied with, the court, by order
stating such compliance, may authorize the executor or
administrator to sell, mortgage, or otherwise encumber, in
proper cases, such part of the estate as is deemed necessary,
and in case of sale the court may authorize it to be public or
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private, as would be most beneficial to all parties concerned.
The executor or administrator shall be furnished with a
certified copy of such order;
(e) If the estate is to be sold at auction, the mode of
giving notice of the time and place of the sale shall be
governed by the provisions concerning notice of execution
sale;
(f) There shall be recorded in the registry of deeds of the
province in which the real estate thus sold, mortgage, or
otherwise encumbered is situated, a certified copy of the
order of the court, together with the deed of the executor or
administrator for such real estate, which shall be as valid as
if the deed had been executed by the deceased in his lifetime.
Section 8. When court may authorize conveyance of
realty which deceased contracted to convey. Notice. Effect
of deed. — Where the deceased was in his lifetime under
contract, binding in law, to deed real property, or an interest
therein, the court having jurisdiction of the estate may, on
application for that purpose, authorize the executor or
administrator to convey such property according to such
contract, or with such modifications as are agreed upon by
the parties and approved by the court; and if the contract is
to convey real property to the executor or administrator, the
clerk of court shall execute the deed. The deed executed by
such executor, administrator, or clerk of court shall be as
affectual to convey the property as if executed by the
deceased in his lifetime; but no such conveyance shall be
authorized until notice of the application for that purpose has
been given personally or by mail to all persons interested, and
such further notice has been given, by publication or
otherwise, as the court deems proper; nor if the assets in the
hands of the executor or administrator will thereby be
reduced so as to prevent a creditor from receiving his full debt
or diminish his dividend.
Section 9. When court may authorize conveyance of
lands which deceased held in trust. — Where the deceased
in his lifetime held real property in trust for another person,
the court may after notice given as required in the last
preceding section, authorize the executor or administrator to
deed such property to the person, or his executor or
administrator, for whose use and benefit it was so held; and
the court may order the execution of such trust, whether
created by deed or by law.
RULE 90
Distribution and Partition of the Estate
Section 1. When order for distribution of reside made.
— When the debts, funeral charges, and expenses of
administration, the allowance to the widow, and inheritance
tax, if any, chargeable to the estate in accordance with law,
have been paid, the court, on the application of the executor
or administrator, or of a person interested in the estate, and
after hearing upon notice, shall assign the residue of the
estate to the persons entitled to the same, naming them and
the proportions, or parts, to which each is entitled, and such
persons may demand and recover their respective shares
from the executor or administrator, or any other person
having the same in his possession. If there is a controversy
before the court as to who are the lawful heirs of the
deceased person or as the distributive shares to which each
pg. 18
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
person is entitled under the law, the controversy shall be
heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the
obligations above mentioned has been made or provided for,
unless the distributees, or any of them, give a bond, in a sum
to be fixed by the court, conditioned for the payment of said
obligations within such time as the court directs.
Section 2. Questions as to advancement to be
determined. — Questions as to advancement made, or
alleged to have been made, by the deceased to any heir may
be heard and determined by the court having jurisdiction of
the estate proceedings; and the final order of the court
thereon shall be binding on the person raising the questions
and on the heir.
Section 3. By whom expenses of partition paid. — If at
the time of distribution the executor or administrator has
retained sufficient effects in his hands which may lawfully be
applied for the expenses of partition of the properties
distributed, such expenses of partition may be paid by such
executor or administrator when it appears equitable to the
court and not inconsistent with the intention of the testator;
otherwise, they shall be paid by the parties in proportion to
their respective shares or interest in the premises, and the
apportionment shall be settled and allowed by the court, and,
if any person interested in the partition does not pay his
proportion or share, the court may issue an execution in the
name of the executor or administrator against the party not
paying the sum assessed.
Section 4. Recording the order of partition of estate. —
Certified copies of final orders and judgments of the court
relating to the real estate or the partition thereof shall be
recorded in the registry of deeds of the province where the
property is situated.
Distribution and partition of estate
General Rule: An order of distribution shall be made after
payment of all debts, funeral expenses, expenses for
administration, allowance of the widow and inheritance tax is
made.
Exception: If the distributees or any of them gives a bond
conditioned for the payment of said obligation, the order of
distribution may be made even before payment of all debts.
Principle of Collation
JS: This is an important principle insofar as the settlement of
estate of the decedent is concerned, even in Wills and Succession,
this is an important concept.
This refers to actions by compulsory heirs against another
compulsory heirs who, before the death of the decedent, received
any property from the decedent’s properties thru donation and
gratuity but not those received by the heir thru sale. The principle
holds that whatever the heir received before the death of the
decedent by reason of donation or gratuity is considered as an
advance inheritance.
Thus, the heir who receives advance inheritance is required
under the Rules to Collate the value of whatever he received with
estate of the decedent in order to determine the entire mass of the
estate and determine how much should be distributed to each heir.
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What is required by the Rules is that, the heir must give to the
court the value of the property he received. The value is to be
determined at the time of the donation.
TIP form JS: If you received advance inheritance from your
parents, you make it appear that the same is transferred to you thru
sale and that there is a consideration therefor so that you may no
longer be required to collate the property.
However, if it is you who is aggrieved because your parents and
one of your siblings entered into a fictitious sale in order to prevent
future collation, your remedy is an action to annul the sale on the
ground of lack of consideration.
Partition
After the debts of the estate are paid, the residue of the estate
is to be distributed among the heirs.
In case of partition, all of the heirs must execute a project of
partition. Such project of partition must be submitted to the court
for approval and the same should be registered with the ROD of the
city of province where the property is situated.
The project of partition will become the basis of the title of the
heirs who signed therein.
Expenses incurred for the preparation, execution, and
registration of the project of partition shall be paid by the heirs in
proportion to their respective shares in the estate. However, it may
be the obligation of the executor or administrator if the same is
consistent with the intention of the testator and the court finds out
that the same is equitable.
Compensation of executor or administrator
Executors and administrators are entitled to compensation of
4 pesos per day, for the entire duration of the administration, for
necessary expenses in care, management and settlement of the
estate. He is also entitled to commissions.
Accountability of the executor or administrator
In terms of accountability, the executor or administrator is not
liable for any increase or decrease, or losses. He is also allowed to
use the property of the estate but he has the duty to pay for its
value. Attorney’s fees is to be paid by the executor or administrator
of estate except if the executor or administrator proves that the
expenses incurred for the hiring of a lawyer redounded to the
benefit of the estate, in which case attorney’s fees may be
reimbursed by the estate.
If the administrator or executor refuses to pay attorney’s fee,
the recourse of the lawyer is to file either of the following actions:
1. Action against the executor or administrator in his personal
capacity; or
2. Action against the estate as part of the expenses of the
estate.
RULE 91
Escheats
Section 1. When and by whom petition filed. — When
a person dies intestate, seized of real property in the
Philippines, leaving no heir or person by law entitled to the
same, the Solicitor General or his representative in behalf of
the Republic of the Philippines, may file a petition in the Court
of First Instance of the province where the deceased last
resided or in which he had estate, if he resided out of the
pg. 19
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
Philippines, setting forth the facts, and praying that the
estate of the deceased be declared escheated.
Section 2. Order for hearing. — If the petition is
sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix a date and place
for the hearing thereof, which date shall be not more than six
(6) months after the entry of the order, and shall direct that
a copy of the order be published before the hearing at least
once a week for six (6) successive weeks in some newspaper
of general circulation published in the province, as the court
shall be deem best.
Section 3. Hearing and judgment. — Upon satisfactory
proof in open court on the date fixed in the order that such
order has been published as directed and that the person died
intestate, seized of real or personal property in the
Philippines, leaving no heir or person entitled to the same,
and no sufficient cause being shown to the contrary, the
court shall adjudge that the estate of the estate of the
deceased in the Philippines, after the payment of just debts
and charges, shall escheat; and shall, pursuant to law, assign
the personal estate to the municipality or city where he last
resided in the Philippines, and the real estate to the
municipalities or cities, respectively, in which the same is
situated. If the deceased never resided in the Philippines, the
whole estate may be assigned to the respective
municipalities or cities where the same is located. Shall estate
shall be for the benefit of public schools, and public charitable
institutions and centers in said municipalities or cities.
The court, at the instance of an interested party, or on
its own motion, may order the establishment of a permanent
trust, so that the only income from the property shall be used.
Section 4. When and by whom claim to estate filed. —
If a devisee, legatee, heir, widow, widower, or other person
entitled to such estate appears and files a claim thereto with
the court within five (5) years from the date of such
judgment, such person shall have possession of and title to
the same, or if sold, the municipality or city shall be
accountable to him for the proceeds after deducting
reasonable charges for the care of the estate; but a claim not
made within the said time shall be forever barred.
Section 5. Other actions for escheat. — 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.
Escheat
It is the falling of a decedent’s estate into the general property
of the State on his death intestate without lawful heirs, and is
applied indifferently to all his rights to property of whatever nature.
It is a special proceeding commenced by a petition, filed by
the Solicitor General or his authorized representative in behalf of
the Republic of the Philippines.
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It is to be filed before the RTC where the deceased last resided
or where the property is located if the deceased is not a resident of
the Philippines.
Jurisdictional requirements in Escheat proceedings
The petition must allege that the deceased left properties and
that he has no heirs, that the property is abandoned. Once the
petition is filed in court, the court must issue an order of hearing.
The hearing shall not be more than 6 months after the entry of
order and direct the publication of a copy of the order at least once
a week for 6 consecutive weeks in some newspaper or general
circulation in the province.
The publication serves as a constructive notice to all persons
who might have interest over the property.
Effect if granted
If the court grants the Escheat, the judgment thereon is final
and conclusive against all person with notice.
When judgment may be nullified
The judgment of the court in Escheat proceedings may be
nullified provided the action to nullify the same is filed within 5
years from the date of such judgment otherwise it will be barred
forever.
Art. 1014 (NCC) the 5-year period is to be reckoned from the
date the property as delivered to the State. If the property had been
sold, the municipality or city shall be accountable only for such part
of the proceeds as may not have been lawfully spent.
Reversion Proceedings
This is synonymous with an escheat proceeding because by
virtue of which the property is reverted back to the State.
This is in accord with the principle of pari delicto. The property
is alienated in violation of the Constitutional law. The estate is
reverted back to the State and the same is proper in illegal sales of
land to disqualified aliens.
There was one case where the SC held that even when there
was an apparent violation of the Constitution made in the sale of
the property, reversion proceedings was not proper because
although the property was sold to an alien, it was later on sold to a
Filipino citizen.
GENERAL GUARDIANS AND GUARDIANSHIP
Governing laws
Guardianship of minors is governed by the Rule on Guardianship
of Minors (AM No. 03-02-05-SC).
Guardianship of incompetents who are not minors is still
governed by the provisions of the Rules of Court on Guardianship.
Guardianship
It is the power of protective authority given by law and imposed
in an individual who is free and in enjoyment of his rights over one
whose weakness on account of his age or other infirmity renders him
unable to protect himself.
Kinds of Guardians
1. Legal Guardian – without need of judicial appointment, as in the
case of parents over the persons of their minor children and with
respect to property of the minor children not exceeding 50,000.
2. Guardian ad litem – any competent person appointed by the court
for purposes of particular action or proceeding involving a minor.
pg. 20
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
3. Judicial guardian – competent person appointed by the court over
the person and/or property of the ward to represent the latter in
ALL his civil acts, and transactions and is the one contemplated in
Rule 92.
RULE 92
Venue
Section 1. Where to institute proceedings. —
Guardianship of a person or estate of a minor or incompetent
may be instituted in the Court of First Instance of the
province, or in the justice of the peace court of the
municipality, or in the municipal court chartered city where
the minor or incompetent persons resides, and if he resides in
a foreign country, in the Court of First Instance of the
province wherein his property or the party thereof is
situated; provided, however, that where the value of the
property of such minor or incompetent exceeds that
jurisdiction of the justice of the peace or municipal court, the
proceedings shall be instituted in the Court of First Instance.
In the City of Manila the proceedings shall be instituted
in the Juvenile and Domestic Relations Court.
Section 2. 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.
Section 3. Transfer of venue. — The court taking
cognizance of a guardianship proceeding, may transfer the
same to the court of another province or municipality
wherein the ward has acquired real property, if he has
transferred thereto his bona-fide residence, and the latter
court shall have full jurisdiction to continue the proceedings,
without requiring payment of additional court fees.
NOTE:
By virtue of RA 8369 otherwise known as Family Courts Act of
1997, Family Courts are vested with exclusive original jurisdiction
over guardianship of minors.
If the minor is a resident of the Philippines, the petition must
be filed in the Family Court where he is a resident.
If the minor is a non-resident of the Philippines, the petition
must be filed in the Family Court where his property is located.
RULE 93
Appointment of Guardians
Section 1. Who may petition for appointment of
guardian for resident. — Any relative, friend, or other person
on behalf of a resident minor or incompetent who has no
parent or lawful guardian, or the minor himself if fourteen
years of age or over, may petition the court having
jurisdiction for the appointment of a general guardian for the
person or estate, or both, of such minor or incompetent. An
officer of the Federal Administration of the United States in
the Philippines may also file a petition in favor of a ward
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thereof, and the Director of Health, in favor of an insane
person who should be hospitalized, or in favor of an isolated
leper.
Section 2. Contents of petition. — A petition for the
appointment of a general guardian must show, so far as
known to the petitioner:
(a) The jurisdiction facts;
(b) The minority or incompetency rendering the
appointment necessary or convenient;
(c) The names, ages, and residence of the relatives of the
minor or incompetent, and of the person having him in their
care;
(d) The probable value and character of his estate;
(e) The name of the person for whom letters of
guardianship.
The petition shall be verified; but no defect in the
petition or verification shall render void the issuance of
letters of guardianship.
Section 3. Court to set time for hearing. Notice
thereof. — When a petition for the appointment of a general
guardian is filed, the court shall fix a time and place for
hearing the same, and shall cause reasonable notice thereof
to be given to the persons mentioned in the petition residing
in the province, including the minor if above 14 years of age
or the incompetent himself, and may direct other general or
special notice thereof to be given.
Section 4. Opposition to petition. — Any interested
person may, by filing a written opposition, contest the
petition on the ground of majority of the alleged minor,
competency of the alleged incompetent, or the insuitability
of the person for whom letters are prayed, and may pray that
the petition be dismissed, or that letters of guardianship issue
to himself, or to any suitable person named in the opposition.
Section 5. Hearing and order for letters to issue. — At
the hearing of the petition the alleged in competent must be
present if able to attend, and it must be shown that the
required notice has been given. Thereupon the courts shall
hear the evidence of the parties in support of their respective
allegations, and, if the person in question is a minor, or
incompetent it shall be appoint a suitable guardian of his
person or estate, or both, with the powers and duties
hereinafter specified.
Section 6. When and how guardian for non-resident
appointed. Notice. — When a person liable to be put under
guardianship resides without the Philippines but the estate
therein, any relative or friend of such person, or any one
interested in his estate, in expectancy or otherwise, may
petition a court having jurisdiction for the appointment of a
guardian for the estate, and if, after notice given to such
person and in such manner as the court deems proper, by
publication or otherwise, and hearing, the court is satisfied
that such non-resident is a minor or incompetent rendering a
guardian necessary or convenient, it may appoint a guardian
for such estate.
Section 7. Parents as guardians. — When the property
of the child under parental authority is worth two thousand
pesos or less, the father of the mother, without the necessity
of court appointment, shall be his legal guardian. When the
pg. 21
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
property of the child is worth more than two thousand pesos,
the father or the mother shall be considered guardian of the
child's property, with the duties and obligations of guardians
under this rules, and shall file the petition required by section
2 hereof. For good reasons the court may, however, appoint
another suitable person.
Section 8. Service of judgment. — Final orders or
judgments under this rule shall be served upon the civil
registrar of the municipality or city where the minor or
incompetent person resides or where his property or part
thereof is situated.
Who may petition for appointment of guardian:
1. Any relative; or
2. Friend; or
3. Other person in behalf of the resident incompetent who has
no parents or lawful guardian; or
4. The minor himself who is 14 years old and above.
Order of Preference in the appointment of the guardian
1. Parents of the minor;
2. Surviving grandparents, selected by the court;
3. Oldest brothers and sisters who is over 21 years of age unless
he unfit or unqualified to be appointed;
4. Those who is the actual custodian of the minor, over 21 years
of age unless he unfit or unqualified to be appointed;
5. Any person chosen who in its view may serve the best interest
of the child.
Persons not qualified or unfit to be appointed as guardian
1. Rule 137, Section 1: Disqualification of judges. This provision
enumerates those persons who are disqualified to be
appointed as guardian
2. Those whose interest are in conflict with the interest of the
ward;
3. Those who is not a resident of the Philippines
4. Those who in the following factors are not qualified:
a. Moral character and conduct;
b. Physical, mental, or psychological condition
c. Financial status;
d. Sound judgment, prudence and trustworthiness;
e. Ability to exercise the powers and duties of guardian.
RULE 94
Bonds of Guardians
Section 1. Bond to be given before issuance of letters.
Amount. Condition. — Before a guardian appointed enters
upon the execution of his trust, or letters of guardianship
issue, he shall give a bond, in such sum as the court directs,
conditioned as follows:
(a) To make and return to the court, within three (3)
months, a true and complete inventory of all the estate, real
and personal, of his ward which shall come to his possession
or knowledge of any other person for him;
(b) To faithfully execute the duties of his trust, to
manage and dispose of the estate according to these rules for
the best interests of the ward, and to provide for the proper
care, custody, and education of the ward;
(c) To render a true and just account of all the estate of
the ward in his hands, and of all proceeds or interest derived
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therefrom, and of the management and disposition of the
same, at the time designated by these rules and such other
times as the courts directs, and at the expiration of his trust
to settle his accounts with the court and deliver and pay over
all the estate, effects, and moneys remaining in his hands, or
due from him on such settlement, to the person lawfully
entitled thereto;
(d) To perform all orders of the court by him to be
performed.
Section 2. When new bond may be required and old
sureties discharged. — Whenever it is deemed necessary, the
court may require a new bond to be given by the guardian,
and may discharge the sureties on the old bond from further
liability, after due notice to interested persons, when no
injury can result therefrom to those interested in the estate.
Section 3. Bonds to be filed. Actions thereon. — Every
bond given by a guardian shall be filed in the office of the
clerk of the court, and, in case of the breach of a condition
thereof, may be prosecuted in the same proceeding or in a
separate action for the use and benefit of the ward or of any
other person legally interested in the estate.
NOTE:
Before an appointed guardian enters upon the execution of
his trust, or letters of guardianship issue, he shall give a bond, in
such sum to be determined by the court.
The appointed guardian has to comply with the following
duties otherwise his failure to do so will be ground of his removal.
1. To make and return to the court, within three (3) months, a
true and complete inventory of all the estate, real and
personal, of his ward which shall come to his possession or
knowledge of any other person for him;
2. To faithfully execute the duties of his trust, to manage and
dispose of the estate according to these rules for the best
interests of the ward, and to provide for the proper care,
custody, and education of the ward;
3. To render a true and just account of all the estate of the ward
in his hands, and of all proceeds or interest derived
therefrom, and of the management and disposition of the
same, at the time designated by these rules and such other
times as the courts directs, and at the expiration of his trust
to settle his accounts with the court and deliver and pay over
all the estate, effects, and moneys remaining in his hands, or
due from him on such settlement, to the person lawfully
entitled thereto;
4. To perform all orders of the court by him to be performed.
Grounds for the removal of the guardian
1. He becomes physically disabled or incapacitated;
2. He becomes insane or mentally incapacitated;
3. He wasted or mismanaged the estate;
4. He failed to render an account or make a return for 30 days
after it is due;
5. He is convicted of a crime; or
6. He becomes a moral delinquent
NOTE: A guardian is allowed to resign as long as there are
justifiable cause for his resignation. If the court grants the same, it
will appoint a new guardian who is qualified under the rules.
pg. 22
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
Grounds for the termination of the guardianship
1. Competency of the ward has been judicially determined
2. Guardianship is no longer necessary
3. Death of the guardian; or
4. Death of the ward.
RULE 95
Selling and Encumbering Property of Ward
Section 1. Petition of guardian for leave to sell or
encumber estate. — 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.
Section 2. Order to show cause thereupon. — If it seems
probable that such sale or encumbrance is necessary, or
would be beneficial to the ward, the court shall make an
order directing the next of kin of the ward, and all persons
interested in the estate, to appear at a reasonable time and
place therein specified to show cause why the prayer of the
petition should not be granted.
Section 3. Hearing on return of order. Costs. — At the
time and place designated in the order to show cause, the
court shall hear the proofs and allegations of the petitioner
and next of kin, and other persons interested, together with
their witnesses, and grant and refuse the prayer of the
petition as the best interest of the ward require. The court
shall make such order as to cost of the hearing as may be just.
Section 4. Contents of order for sale or encumbrance,
and how long effective. Bond. — If, after full examination, it
appears that it is necessary, or would be beneficial to the
ward, to sell or encumber the estate, or some portion of it,
the court shall order such sale or encumbrance and that the
proceeds thereof be expended for the maintenance of the
ward and his family, or the education of the ward, if a minor,
or for the putting of the same interest, or the investment of
the same as the circumstances may require. The order shall
specify the causes why the sale or encumbrance is necessary
or beneficial, and may direct that estate ordered sold be
disposed of at either public or private sale, subject to such
conditions as to the time and manner of payment, and
security where a part of the payment is deferred as in the
discretion of the court are deemed most beneficial to the
ward. The original bond of the guardian shall stand as
security for the proper appropriation of the proceeds of the
sale, but the judge may, if deemed expedient, require an
additional bond as a condition for the granting of the order
of sale. No order of sale granted in pursuance of this section
shall continue in force more than one (1) year after granting
the same, without a sale being had.
Section 5. Court may order investment of proceeds and
direct management of estate. — The court may authorize
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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.
RULE 96
General Powers and Duties of Guardians
Section 1. To what guardianship shall extend. — A
guardian appointed shall 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. The
guardian of the estate of a non-resident shall have the
management of all the estate of the ward within the
Philippines, and no court other than that in which such
guardian was appointed shall have jurisdiction over the
guardianship.
Section 2. Guardian to pay debts of ward. — Every
guardian must 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.
Section 3. Guardian to settle accounts, collect debts,
and appear in actions for ward. — A guardian must settle all
accounts of his ward, and demand, sue for, and receive all
debts due him, or may, with the approval of the court,
compound for the same and give discharges to the debtor, on
receiving a fair and just dividend of the estate and effects;
and he shall appear for and represent his ward in all actions
and special proceedings, unless another person be appointed
for that purpose.
Section 4. Estate to be managed frugally, and proceeds
applied to maintenance of ward. — A guardian must
manage the estate of his ward frugally and without the
waste, and apply the income and profits thereof, so far as
may be necessary, to the comfortable and suitable
maintenance of the ward and his family, if there be any; and
if such income and profits be insufficient for that purpose, the
guardian may sell or encumber the real estate, upon being
authorized by order so to do, and apply to such of the
proceeds as may be necessary to such maintenance.
Section 5. Guardian may be authorized to join in
partition proceedings after hearing. — The court may
authorized the guardian to join in an assent to a partition of
real or personal estate held by the ward jointly or in common
with others, but such authority shall only be granted after
hearing, upon such notice to relatives of the ward as the court
may direct, and a careful investigation as to the necessity and
propriety of the proposed action.
Section 6. Proceedings when the person suspected of
embezzling or concealing property of ward. — Upon
complaint of the guardian or ward, or of any person having
actual or prospective interest in the estate of the ward as
creditor, heir, or otherwise, that anyone is suspected of
having embezzled, concealed, or conveyed away any money,
goods, or interest, or a written instrument, belonging to the
pg. 23
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
ward or his estate, the court may cite the suspected person
to appear for examination touching such money, goods,
interest, or instrument, and make such orders as will secure
the estate against such embezzlement, concealment or
conveyance.
Section 7. Inventories and accounts of guardians, and
appraisement of estates. — A guardian must 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, the rendition of any
of which may be compelled upon the application of an
interested person. Such inventories and accounts shall be
sworn to by the guardian. All the estate of the ward described
in the first inventory shall be appraised. In the appraisement
the court may request the assistance of one or more of the
inheritance tax appraisers. And whenever any property of the
ward not included in an inventory already rendered is
discovered, or suceeded to, or acquired by the ward, like
proceedings shall be had for securing an inventory and
appraisement thereof within three (3) months after such
discovery, succession, or acquisition.
Section 8. When guardian's accounts presented for
settlement. Expenses and compensation allowed. — Upon
the expiration of a year from the time of his appointment,
and as often thereafter as may be required, a guardian must
present his account to the court for settlement and
allowance. In the settlement of the account, the guardian,
other than a parent, shall be allowed the amount of his
reasonable expenses incurred in the execution of his trust and
also such compensation for his services as the court deems
just, not exceeding fifteen per centum of the net income of
the ward.
RULE 97
Termination of Guardianship
Section 1. Petition that competency of ward be
adjudged, and proceedings thereupon. — A person who has
been declared incompetent for any reason, or his guardian,
relative, or friend, may petition the court to have his present
competency judicially determined. The petition shall be
verified by oath, and shall state that such person is then
competent. Upon receiving the petition, the court shall fix a
time for hearing the questions raised thereby, and cause
reasonable notice thereof to be given to the guardian of the
person so declared incompetent, and to the ward. On the
trial, the guardian or relatives of the ward, and, in the
discretion of the court, any other person, may contest the
right to the relief demanded, and witnesses may be called
and examined by the parties or by the court on its own
motion. If it be found that the person is no longer
incompetent, his competency shall be adjudged and the
guardianship shall cease.
Section 2. When the guardian removed or allowed to
resign. New appointment. — When a guardian becomes
insane or otherwise incapable of discharging his trust or
unsuitable therefor, or has wasted or mismanaged the
estate, or failed for thirty (30) days after it is due to render an
account or make a return, the court may, upon reasonable
notice to the guardian, remove him, and compel him to
surrender the estate of the ward to the person found to be
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lawfully entitled thereto. A guardian may resign when it
appears proper to allow the same; and upon his resignation
or removal the court may appoint another in his place.
Section 3. Other termination of guardianship. — The
marriage or voluntary emancipation of a minor ward
terminates the guardianship of the person of the ward, and
shall enable the minor to administer his property as though
he were of age, but he cannot borrow the money or alienate
or encumber real property without the consent of his father
or mother, or guardian. He can sue and be sued in court only
with the assistance of his father, mother or guardian. The
guardian of any person may be discharged by the court when
it appears, upon the application of the ward or otherwise,
that the guardianship is no longer necessary.
Section 4. Record to be kept by the justice of the peace
or municipal judge. — When a justice of the peace or
municipal court takes cognizance of the proceedings in
pursuance of the provisions of these rules, the record of the
proceedings shall be kept as in the Court of First Instance.
Section 5. Service of judgment. — Final orders of
judgments under this rule shall be served upon the civil
registrar of the municipality or city where the minor or
incompetent person resides or where his property or part
thereof is situated.
REVIEW: If the subject of the guardianship is a minor, use the
circular. If he is not a minor but other incompetents, use the Rules
of Court as a rule in guiding you in the filing for the petition for
guardianship.
The petition for the guardianship of the minor can be with
respect to his person, his property or both. In connection with the
rule on guardianship of minors, the jurisdiction would be with the
Family Court of the place where the minor last resided or if the
minor is not a resident of the Philippines, it would be with the
Family Court where the property of the minor is situated. That is
synonymous with the Rules on Guardianship of other incompetents.
As to the matter on who can file the petition, it could be any of
the relative of the minor or any person on his behalf and take note
that the minor himself can file the petition if he is already 14 years
old.
In filing the petition, it must state the grounds upon which it is
based.
***Those provision with bold contents, other than the title, were
discussed by JS as salient features of the rule.
AM NO. 03-02-05-SC
[MAY 01, 2003]
RULE ON GUARDIANSHIP OF MINORS
Section 1. Applicability of the Rule. – This Rule shall apply to
petitions for guardianship over the person or property, or both, of
a minor.
The father and the mother shall jointly exercise legal
guardianship over the person and property of their unemancipated
common child without the necessity of a court appointment. In such
case, this Rule shall be suppletory to the provisions of the Family
Code on guardianship.
pg. 24
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
Sec. 2. Who may petition for appointment of guardian. – On
grounds authorized by law, 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. 3. Where to file petition. – A petition for guardianship
over the person or property, or both, of a minor may be filed in the
Family Court of the province or city where the minor actually
resides. If he resides in a foreign country, the petition shall be filed
with the Family Court of the province or city where his property or
any part thereof is situated.
Sec. 4. Grounds of petition. - The grounds for the appointment
of a guardian over the person or property, or both, of a minor are
the following:
a. death, continued absence, or incapacity of his parents;
b. suspension, deprivation or termination of parental
authority;
c. remarriage of his surviving parent, if the latter Is found
unsuitable to exercise parental authority; or
d. When the best interests of the minor so require.
NOTE: Any of these grounds must be alleged in the petition
because these are the only grounds which would allow the grant
of the petition.
Sec. 5. Qualifications of guardians. – same under the Rules
Sec. 6. Who may be appointed guardian of the person or
property, or both, of a minor. Same under the rules
Sec. 7. Contents of petition. – A petition for the appointment
of a general guardian must allege the following:
a. The jurisdictional facts;
b. The name, age and residence of the prospective ward;
c. The ground rendering the appointment necessary or
convenient;
d. The death of the parents of the minor or the termination,
deprivation or suspension of their parental authority;
e. The remarriage of the minor’s surviving parent;
f. The names, ages, and residences of relatives within the
4th civil degree of the minor, and of persons having him
in their care and custody;
g. The probable value, character and location of the
property of the minor; and
h. The name, age and residence of the person for whom
letters of guardianship are prayed.
The petition shall be verified and accompanied by a
certification against forum shopping. However, no defect in the
petition or verification shall render void the issuance of letters of
guardianship.
NOTE: The only difference between this provision and that
under the Rules of Court is under this Supreme Court Circular
there must be a conduct of a case study report which as a rule
must always be submitted before the scheduled initial hearing.
The case study report is one of the jurisdictional requirements.
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Thus the court must issue an order to the social worker,
giving him a certain period of time until before the case is
scheduled for hearing, to conduct the case study. In order to
prevent delay in the proceedings, after you file the petition you
must be ready to file a motion to court for the court to issue an
order to the social worker for the conduct of the social case
study.
The social case study report is a recommendation of the
social worker to the court on whether or not the petition should
be granted in fact the social worker is allowed to intervene if he
feels that the petition should be denied.
Sec. 8. Time and notice of hearing. – When a petition for the
appointment of a general guardian is filed, the court shall fix a time
and place for its hearing, and shall cause reasonable notice to be
given to the persons mentioned in the petition, including the minor
if he is fourteen years of age or over, and may direct other general
or special notice to be given.
Sec. 9. Case study report. – The court shall order a social
worker to conduct a case study of the minor and all the
prospective guardians and submit his report and recommendation
to the court for its guidance before the scheduled hearing. The
social worker may intervene on behalf of the minor if he finds that
the petition for guardianship should be denied.
Sec. 10. Opposition to petition. – Any interested person may
contest the petition by filing a written opposition based on such
grounds as the majority of the minor or the unsuitability of the
person for whom letters are prayed, and pray that the petition be
denied, or that letters of guardianship issue to himself, or to any
suitable person named in the opposition.
NOTE: This is the reason for the required publication. The
opposition must contain the grounds upon which it is based.
Before the letters of guardianship is granted or before the
guardian assumes his duties and responsibilities, he must first
post a bond.
Sec. 11. Hearing and order for letters to issue. – At the hearing
of the petition, it must be shown that the requirement of notice has
been complied with. The prospective ward shall be presented to the
court. The court shall hear the evidence of the parties in support of
their respective allegations. If warranted, the court shall appoint a
suitable guardian of the person or property, or both, of the minor.
At the discretion of the court, the hearing on guardianship may
be closed to the public and the records of the case shall not be
released without its approval.
Sec. 12. When and how a guardian of the property for non-
resident minor is appointed; notice. – When the minor resides
outside the Philippines but has property in the Philippines, any
relative or friend of such minor, or any one interested in his
property, in expectancy or otherwise, may petition the Family Court
for the appointment of a guardian over the property.
Notice of hearing of the petition shall be given to the minor by
publication or any other means as the court may deem proper. The
court may dispense with the presence of the non-resident minor.
If after hearing the court is satisfied that such non-resident is a
minor and a guardian is necessary or convenient, it may appoint a
guardian over his property.
pg. 25
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
Sec. 13. Service of final and executory judgment or order. –
The final and executory judgment or order shall be served upon the
Local Civil Registrar of the municipality or city where the minor
resides and the Register of Deeds of the place where his property
or part thereof is situated shall annotate the same in the
corresponding title, and report to the court his compliance within
fifteen days from receipt of the order.
(SAME under the Rules)
Sec. 14. Bond of guardian; amount; conditions. - Before he
enters upon the execution of his trust, or letters of guardianship
issue, an appointed guardian may be required to post a bond in
such sum as the court shall determine and conditioned as follows:
a. To make and return to the court, within three months
after the issuance of his letters of guardianship, a true and
complete Inventory of all the property, real and personal,
of his ward which shall come to his possession or
knowledge or to the possession or knowledge of any other
person in his behalf;
b. To faithfully execute the duties of his trust, to manage and
dispose of the property according to this rule for the best
interests of the ward, and to provide for his proper care,
custody and education;
c. To render a true and Just account of all the property of the
ward in his hands, and of all proceeds or interest derived
therefrom, and of the management and disposition of the
same, at the time designated by this rule and such other
times as the court directs; and at the expiration of his
trust, to settle his accounts with the court and deliver and
pay over all the property, effects, and monies remaining
in his hands, or due from him on such settlement, to the
person lawfully entitled thereto; and
d. To perform all orders of the court and such other duties as
may be required by law.
Sec. 15. Where to file the bond; action thereon. – The bond
posted by a guardian shall be filed in the Family Court and, In case
of breach of any of its conditions, the guardian may be prosecuted
in the same proceeding for the benefit of the ward or of any other
person legally interested in the property.
Whenever necessary, the court may require the guardian to
post a new bond and may discharge from further liability the
sureties on the old bond after due notice to interested persons, if
no injury may result therefrom to those interested in the property.
Sec. 16. Bond of parents as guardians of property of minor. –
If the market value of the property or the annual Income of the
child exceeds P50,000.00, the parent concerned shall furnish a
bond In such amount as the court may determine, but in no case
less than ten per centum of the value of such property or annual
income, to guarantee the performance of the obligations
prescribed for general guardians.
A verified petition for approval of the bond shall be filed in
the Family Court of the place where the child resides or, if the child
resides in a foreign country, in the Family Court of the place where
the property or any part thereof is situated.
The petition shall be docketed as a summary special
proceeding In which all incidents and issues regarding the
performance of the obligations of a general guardian shall be
heard and resolved.
NOTE: If the petition for guardianship is filed by the parents
of the minor with respect to his properties the value of which
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exceeds 50,000 the petition is docketed as summary special
proceedings.
Sec. 17. General duties of guardian. The same under the Rules
of Court
A guardian shall perform the following duties:
(a) To pay the just debts of the ward out of the personal
property and the income of the real property of the ward, If the
same is sufficient; otherwise, out of the real property of the ward
upon obtaining an order for its sale or encumbrance;
(b) To settle all accounts of his ward, and demand, sue for,
receive all debts due him, or may, with the approval of the court,
compound for the same and give discharges to the debtor on
receiving a fair and just dividend of the property and effects; and to
appear for and represent the ward in all actions and special
proceedings, unless another person is appointed for that purpose;
(c) To manage the property of the ward frugally and without
waste, and apply the income and profits thereon, insofar as may be
necessary, to the comfortable and suitable maintenance of the
ward; and if such income and profits be insufficient for that
purpose, to sell or encumber the real or personal property, upon
being authorized by the court to do so;
(d) To consent to a partition of real or personal property owned
by the ward jointly or in common with others upon authority
granted by the court after hearing, notice to relatives of the ward,
and a careful investigation as to the necessity and propriety of the
proposed action;
(e) To submit to the court a verified inventory of the property
of his ward within three months after his appointment, and
annually thereafter, the rendition of which may be required upon
the application of an interested person;
(f) To report to the court any property of the ward not included
in the inventory which is discovered, or succeeded to, or acquired
by the ward within three months after such discovery, succession,
or acquisition; and
(g) To render to the court for its approval an accounting of the
property one year from his appointment, and every year thereafter
or as often as may be required.
Sec. 18. Power and duty of the court – The court may:
(a) Request the assistance of one or more commissioners in
the appraisal of the property of the ward reported in the initial and
subsequent inventories;
(b) Authorize reimbursement to the guardian, other than a
parent, of reasonable expenses incurred in the execution of his
trust, and allow payment of compensation for his services as the
court may deem just, not exceeding ten per centum of the net
income of the ward, if any; otherwise, in such amount the court
determines to be a reasonable compensation for his services; and
(c) Upon complaint of the guardian or ward, or of any person
having actual or prospective interest in the property at the ward,
require any person suspected of having embezzled, concealed, or
disposed of any money, goods or interest, or a written instrument
belonging to the ward or his property to appear for examination
concerning any thereof and issue such orders as would secure the
property against such embezzlement, concealment or conveyance.
Sec. 19. Petition to sell or encumber property. - When the
income of a property under guardianship is insufficient to
maintain and educate the ward, or when it is for his benefit that
his personal or real property or any part thereof be sold,
mortgaged or otherwise encumbered, and the proceeds invested
in safe and productive security, or in the improvement or security
pg. 26
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
of other real property, the guardian may file a verified petition
setting forth such facts, and praying that an order issue
authorizing the sale or encumbrance of the property.
NOTE: This is done by petition, not by motion. If there is a
need to sell the property of the minor, a petition to sell or
encumber the property of the minor, which must be verified,
and must contain a justification for the need for the sale or
encumbrance of the property:
1. To support and maintain the ward and his family
Sec. 20. Order to show cause. – If the sale or encumbrance is
necessary or would be beneficial to the ward, the court shall order
his next of kin and all person/s interested in the property to appear
at a reasonable time and place therein specified and show cause
why the petition should not be granted.
Sec. 21. Hearing on return of order; costs. – At the time and
place designated in the order to show cause, the court shall hear
the allegations and evidence of the petitioner and next of kin, and
other persons interested, together with their witnesses, and grant
or deny the petition as the best interests of the ward may require.
Sec. 22. Contents of order for sale or encumbrance and its
duration; bond. – If, after full examination, it is necessary, or would
be beneficial to the ward, to sell or encumber the property, or some
portion of it, the court shall order such sale or encumbrance the
proceeds of which shall be expended for the maintenance or the
education of the ward, or invested as the circumstances may
require. The order shall specify the grounds for the sale or
encumbrance and may direct that the property ordered sold be
disposed of at public sale, subject to such conditions as to the time
and manner of payment, and security where a part of the payment
is deferred. The original bond of the guardian shall stand as security
for the proper appropriation of the proceeds of the sale or
encumbrance, but the court may, if deemed expedient, require an
additional bond as a condition for the sale or encumbrance. The
authority to sell or encumber shall not extend beyond one year,
unless renewed by the court.
Sec. 23. Court may order investment of proceeds and direct
management of property. – The court may authorize and require
the guardian to invest the proceeds of sales or encumbrances, and
any other money of his ward in his hands, in real or personal
property, for the best interests of the ward, and may make such
other orders for the management, investment, and disposition of
the property and effects, as circumstances may warrant.
Sec. 24. Grounds for removal or resignation of guardian. –
When a guardian becomes insane or otherwise incapable of
discharging his trust or is found thereafter to be unsuitable, or has
wasted or mismanaged the property of the ward, or has failed to
render an account or make a return for thirty days after it is due,
the court may, upon reasonable notice to the guardian, remove him
as such and require him to surrender the property of the ward to
the person found to be lawfully entitled thereto.
The court may allow the guardian to resign for justifiable
causes.
Upon the removal or resignation of the guardian, the court
shall appoint a new one.
No motion for removal or resignation shall be granted unless
the guardian has submitted the proper accounting of the property
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of the ward and the court has approved the same. (Same under the
Rules)
Sec. 25. Ground for termination of guardianship. – The court
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. The guardian
shall notify the court of such fact within ten days of its occurrence.
(Same under the Rules)
Sec. 26. Service of final and executory judgment or order. –
The final and executory judgment or order shall be served upon the
Local Civil Registrar of the municipality or city where the minor
resides and the Register of Deeds of the province or city where his
property or any part thereof is situated. Both the Local Civil
Registrar and’ the Register of Deeds shall enter the final and
executory judgment or order in the appropriate books in their
offices.
Sec. 27. Effect of the rule. – This Rule amends Rules 92 to 97
inclusive of the Rules of Court on guardianship of minors.
Guardianship of incompetents who are not minors shall continue to
be under the jurisdiction of the regular courts and governed by the
Rules of Court.
Sec. 28. Effectivity. - This Rule shall take effect on May 1, 2003
following its publication in a newspaper of general circulation not
later than April 15, 2003.
Rule on Adoption
A.M. No. 02-6-02-SC
A. Domestic Adoption
Section 1. Applicability of the Rule.— This Rule covers the
domestic adoption of Filipino children.
Section 2. Objectives.—
(a) The best interests of the child shall be the paramount
consideration in all matters relating to his care, custody and
adoption, in accordance with Philippine laws, the United Nations
(UN) Convention on the Rights of the Child, UN Declaration on Social
and Legal Principles Relating to the Protection and Welfare of
Children with Special Reference to Foster Placement and Adoption,
Nationally and Internationally, and the Hague Convention on the
Protection of Children and Cooperation in Respect of Inter-country
Adoption.
(b) The State shall provide alternative protection and
assistance through foster care or adoption for every child who is a
foundling, neglected, orphaned, or abandoned. To this end, the
State shall:
(i) Ensure that every child remains under the care and
custody of his parents and is provided with love, care,
understanding and security for the full and harmonious
development of his personality. Only when such efforts prove
insufficient and no appropriate placement or adoption within
the child’s extended family is available shall adoption by an
unrelated person be considered.
(ii) Safeguard the biological parents from making hasty
decisions in relinquishing their parental authority over their
child;
pg. 27
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
(iii) Prevent the child from unnecessary separation from
his biological parents;
(iv) conduct public information and educational
campaigns to promote a positive environment for adoption;
(v) ensure that government and private sector agencies
have the capacity to handle adoption inquiries, process
domestic adoption applications and offer adoption-related
services including, but not limited to, parent preparation and
post-adoption education and counseling;
(vi) encourage domestic adoption so as to preserve the
child’s identity and culture in his native land, and only when
this is not available shall inter-country adoption be considered
as a last resort; and
(vii) protect adoptive parents from attempts to disturb
their parental authority and custody over their adopted child.
Any voluntary or involuntary termination of parental authority
shall be administratively or judicially declared so as to establish the
status of the child as “legally available for adoption” and his custody
transferred to the Department of Social Welfare and Development
or to any duly licensed and accredited child-placing or child-caring
agency, which entity shall be authorized to take steps for the
permanent placement of the child.
Section 3. Definition of Terms.— For purposes of this Rule:
(a) “Child” is a person below eighteen (18) years of age at the
time of the filing of the petition for adoption.
(b) “A child legally available for adoption” refers to a child who
has been voluntarily or involuntarily committed to the Department
or to a duly licensed and accredited child-placing or child-caring
agency, freed of the parental authority of his biological parents, or
in case of rescission of adoption, his guardian or adopter(s).
(c) “Voluntarily committed child” is one whose parents
knowingly and willingly relinquish parental authority over him in
favor of the Department.
(d) “Involuntarily committed child” is one whose parents,
known or unknown, have been permanently and judicially deprived
of parental authority over him due to abandonment; substantial,
continuous or repeated neglect and abuse; or incompetence to
discharge parental responsibilities.
(e) “Foundling” refers to a deserted or abandoned infant or
child whose parents, guardian or relatives are unknown; or a child
committed to an orphanage or charitable or similar institution with
unknown facts of birth and parentage and registered in the Civil
Register as a “foundling.”
(f) “Abandoned child” refers to one who has no proper parental
care or guardianship or whose parents have deserted him for a
period of at least six (6) continuous months and has been judicially
declared as such.
(g) “Dependent child” refers to one who is without a parent,
guardian or custodian or one whose parents, guardian or other
custodian for good cause desires to be relieved of his care and
custody and is dependent upon the public for support.
(h) “Neglected child” is one whose basic needs have been
deliberately not attended to or inadequately attended to, physically
or emotionally, by his parents or guardian.
(i) “Physical neglect” occurs when the child is malnourished, ill-
clad and without proper shelter.
(j) “Emotional neglect” exists when a child is raped, seduced,
maltreated, exploited, overworked or made to work under
conditions not conducive to good health or made to beg in the
streets or public places, or placed in moral danger, or exposed to
drugs, alcohol, gambling, prostitution and other vices.
Ma. Meta D. Aboga
IV DVOREF, SY: 2017-2018
(k) “Child-placement agency” refers to an agency duly licensed
and accredited by the Department to provide comprehensive child
welfare services including, but not limited to, receiving applications
for adoption, evaluating the prospective adoptive parents and
preparing the adoption home study report.
(l) “Child-caring agency” refers to an agency duly licensed and
accredited by the Department that provides 24-hour residential
care services for abandoned, orphaned, neglected or voluntarily
committed children.
(m) “Department” refers to the Department of Social Welfare
and Development.
(n) “Deed of Voluntary Commitment” refers to the written and
notarized instrument relinquishing parental authority and
committing the child to the care and custody of the Department
executed by the child’s biological parents or in their absence,
mental incapacity or death, by the child’s legal guardian, to be
witnessed by an authorized representative of the Department after
counseling and other services have been made available to
encourage the biological parents to keep the child.
(o) “Child Study Report” refers to a study made by the court
social worker of the child’s legal status, placement history,
psychological, social, spiritual, medical, ethno-cultural background
and that of his biological family needed in determining the most
appropriate placement for him.
(p) “Home Study Report” refers to a study made by the court
social worker of the motivation and capacity of the prospective
adoptive parents to provide a home that meets the needs of a child.
(q) “Supervised trial custody” refers to the period of time
during which a social worker oversees the adjustment and
emotional readiness of both adopters and adoptee in stabilizing
their filial relationship.
(r) “Licensed Social Worker” refers to one who possesses a
degree in bachelor of science in social work as a minimum
educational requirement and who has passed the government
licensure examination for social workers as required by Republic Act
No. 4373.
(s) “Simulation of birth” is the tampering of the civil registry to
make it appear in the birth records that a certain child was born to
a person who is not his biological mother, thus causing such child to
lose his true identity and status.
(t) “Biological Parents” refer to the child’s mother and father
by nature.
(u) “Pre-Adoption Services” refer to psycho-social services
provided by professionally-trained social workers of the
Department, the social services units of local governments, private
and government health facilities, Family Courts, licensed and
accredited child-caring and child-placement agencies and other
individuals or entities involved in adoption as authorized by the
Department.
(v) “Residence” means a person’s actual stay in the Philippines
for three (3) continuous years immediately prior to the filing of a
petition for adoption and which is maintained until the adoption
decree is entered. Temporary absences for professional, business,
health, or emergency reasons not exceeding sixty (60) days in one
(1) year does not break the continuity requirement.
(w) “Alien” refers to any person, not a Filipino citizen, who
enters and remains in the Philippines and is in possession of a valid
passport or travel documents and visa.
Section 4. Who may adopt.— The following may adopt:
(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
pg. 28
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
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. Provided, further, That the
requirements on residency and certification of the alien’s
qualification to adopt in his country may be waived for the
following:
(i) a former Filipino citizen who seeks to adopt a relative within
the fourth (4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate child of his Filipino
spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt
jointly with his spouse a relative within the fourth (4th) degree of
consanguinity or affinity of the Filipino spouse.
(3) The guardian with respect to the ward after the
termination of the guardianship and clearance of his financial
accountabilities.
Husband and wife shall jointly adopt, except in the following
cases:
(i) if one spouse seeks to adopt the legitimate child of one
spouse by the other spouse; or
(ii) if one spouse seeks to adopt his own illegitimate child:
Provided, however, That the other spouse has signified his consent
thereto; or
(iii) 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.
NOTE: This must be alleged in the petition otherwise the
court will not grant the petition. In the petition, the applicant is
required to prove in court that the he is actually capable of
sustaining his means or he is financially capable of adopting the
minor.
The 16-year old difference is waived if the adopter is the
biological parent of the adoptee or of he is the spouse of the
adoptees parents.
Foreign national is allowed to adopt provided he possesses
the qualifications of a Filipino citizen applicant for adoption laid
down in this provision, otherwise he can go the intercountry
adoption code. However, the SC issued a circular that if one of
the applicants is a foreign citizen, the court must be very careful
with respect to the additional requirements otherwise the court
will be held administratively and criminally liable for granting a
petition for adoption although the applicant failed to comply
with the requirements.
Ma. Meta D. Aboga
IV DVOREF, SY: 2017-2018
One important requirement in case an alien files the
petition is the certification that his country will allow the
adoptee to enter his country otherwise the petition will be
denied. However the alien has the remedy to go to intercountry
adoption court.
Section 5. Who may be adopted.— The following may be
adopted:
(1) Any person below eighteen (18) years of age who has been
voluntarily committed to the Department under Articles 154, 155
and 156 of P.D. No. 603 or judicially declared available for adoption;
(2) The legitimate child of one spouse, by the other spouse;
(3) An illegitimate child, by a qualified adopter to raise the
status of the former to that of legitimacy;
(4) A person of legal age regardless of civil status, if, prior to
the adoption, said person has been consistently considered and
treated by the adopters as their own child since minority;
(5) A child whose adoption has been previously rescinded; or
(6) A child whose biological or adoptive parents have died:
Provided, That no proceedings shall be initiated within six (6)
months from the time of death of said parents.
(7) A child not otherwise disqualified by law or these rules.
NOTE: There is an additional requirement provided for
under a Republic Act that if a child is not related within the 4 th
civil degree of consanguinity or affinity to the adopters the
adopters must seek the consent of the parents and a
certification from the DSWD that the child is legally available for
adoption. That is an administrative proceedings before the
DSWD, issued by the Secretary himself.
Section 6. Venue.— The petition for adoption shall be filed
with the Family Court of the province or city where the prospective
adoptive parents reside.
Section 7. Contents of the Petition.— 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.
(1) If the adopter is a Filipino citizen, the petition shall
allege the following:
(a) The jurisdictional facts;
(b) That the petitioner is of legal age, in possession of full civil
capacity and legal rights; is of good moral character; has not been
convicted of any crime involving moral turpitude; is emotionally and
psychologically capable of caring for children; is at least sixteen (16)
years older than the adoptee, unless the adopter is the biological
parent of the adoptee or is the spouse of the adoptee’s parent; and
is in a position to support and care for his children in keeping with
the means of the family and has undergone pre-adoption services
as required by Section 4 of Republic Act No. 8552.
(2) If the adopter is an alien, the petition shall allege the
following:
(a) The jurisdictional facts;
(b) Sub-paragraph 1(b) above;
(c) That his country has diplomatic relations with the Republic
of the Philippines;
(d) That he has been certified by his diplomatic or consular
office or any appropriate government agency to have the legal
pg. 29
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
capacity to adopt in his country and his government allows the
adoptee to enter his country as his adopted child and reside there
permanently as an adopted child; and
(e) That he has been living in the Philippines for at least three
(3) continuous years prior to the filing of the petition and he
maintains such residence until the adoption decree is entered.
The requirements of certification of the alien’s qualification to
adopt in his country and of residency may be waived if the alien:
(i) is a former Filipino citizen who seeks to adopt a relative
within the fourth degree of consanguinity or affinity; or
(ii) seeks to adopt the legitimate child of his Filipino
spouse; or
(iii) is married to a Filipino citizen and seeks to adopt
jointly with his spouse a relative within the fourth degree of
consanguinity or affinity of the Filipino spouse.
(3) If the adopter is the legal guardian of the adoptee, the
petition shall allege that guardianship had been terminated and the
guardian had cleared his financial accountabilities.
(4) If the adopter is married, the spouse shall be a co-
petitioner for joint adoption except if:
(a) one spouse seeks to adopt the legitimate child of the other,
or
(b) if one spouse seeks to adopt his own illegitimate child and
the other spouse signified written consent thereto, or
(c) if the spouses are legally separated from each other.
(5) If the adoptee is a foundling, the petition shall allege the
entries which should appear in his birth certificate, such as name of
child, date of birth, place of birth, if known; sex, name and
citizenship of adoptive mother and father, and the date and place
of their marriage.
(6) If the petition prays for a change of name, it shall also state
the cause or reason for the change of name.
In all petitions, it shall be alleged:
(a) The first name, surname or names, age and residence
of the adoptee as shown by his record of birth, baptismal or
foundling certificate and school records.
(b) That the adoptee is not disqualified by law to be
adopted.
(c) The probable value and character of the estate of the
adoptee.
(d) The first name, surname or names by which the
adoptee is to be known and registered in the Civil Registry.
A certification of non-forum shopping shall be included
pursuant to Section 5, Rule 7 of the 1997 Rules of Civil Procedure.
Section 8. Rectification of Simulated Birth.— In case the
petition also seeks rectification of a simulated of birth, it shall allege
that:
(a) Petitioner is applying for rectification of a simulated birth;
(b) The simulation of birth was made prior to the date of
effectivity of Republic Act No. 8552 and the application for
rectification of the birth registration and the petition for adoption
were filed within five years from said date;
(c) The petitioner made the simulation of birth for the best
interests of the adoptee; and
(d) The adoptee has been consistently considered and treated
by petitioner as his own child.
Ma. Meta D. Aboga
IV DVOREF, SY: 2017-2018
NOTE: The five-year period under paragraph (b) of this section is
no longer applicable because the period has already lapsed.
Section 9. Adoption of a foundling, an abandoned, dependent
or neglected child.— In case the adoptee is a foundling, an
abandoned, dependent or neglected child, the petition shall allege:
(a) The facts showing that the child is a foundling, abandoned,
dependent or neglected;
(b) The names of the parents, if known, and their residence. If
the child has no known or living parents, then the name and
residence of the guardian, if any;
(c) The name of the duly licensed child-placement agency or
individual under whose care the child is in custody; and
(d) That the Department, child-placement or child-caring
agency is authorized to give its consent.
Section 10. Change of name.— In case the petition also prays
for change of name, the title or caption must contain:
(a) The registered name of the child;
(b) Aliases or other names by which the child has been known;
and
(c) The full name by which the child is to be known.
NOTE: It is now allowed that a change for name of the child
to be adopted may be prayed for under the same petition for
adoption. So there is no need for a separate petition for change
of name.
Section 11. Annexes to the Petition.— The following
documents shall be attached to the petition:
A. Birth, baptismal or foundling certificate, as the case may be,
and school records showing the name, age and residence of the
adoptee;
B. Affidavit of consent of the following:
1. The adoptee, if ten (10) years of age or over;
2. The biological parents of the child, if known, or the legal
guardian, or the child-placement agency, child-caring
agency, or the proper government instrumentality which
has legal custody of the child;
3. The legitimate and adopted children of the adopter and of
the adoptee, if any, who are ten (10) years of age or over;
4. The illegitimate children of the adopter living with him who
are ten (10) years of age or over; and
5. The spouse, if any, of the adopter or adoptee.
C. Child study report on the adoptee and his biological parents;
D. If the petitioner is an alien, certification by his diplomatic or
consular office or any appropriate government agency that he has
the legal capacity to adopt in his country and that his government
allows the adoptee to enter his country as his own adopted child
unless exempted under Section 4(2);
E. Home study report on the adopters. If the adopter is an alien
or residing abroad but qualified to adopt, the home study report by
a foreign adoption agency duly accredited by the Inter-Country
Adoption Board; and
F. Decree of annulment, nullity or legal separation of the
adopter as well as that of the biological parents of the adoptee, if
any.
pg. 30
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
NOTE: Affidavit of consent is an additional requirement.
Section 12. Order of Hearing.— If the petition and
attachments are sufficient in form and substance, the court shall
issue an order which shall contain the following:
(1) the registered name of the adoptee in the birth certificate
and the names by which the adoptee has been known which shall
be stated in the caption;
(2) the purpose of the petition;
(3) the complete name which the adoptee will use if the
petition is granted;
(4) the date and place of hearing which shall be set within six
(6) months from the date of the issuance of the order and shall
direct that a copy thereof be published before the date of hearing
at least once a week for three successive weeks in a newspaper of
general circulation in the province or city where the court is
situated; Provided, that in case of application for change of name,
the date set for hearing shall not be within four (4) months after the
last publication of the notice nor within thirty (30) days prior to an
election.
The newspaper shall be selected by raffle under the
supervision of the Executive Judge.
(5) a directive to the social worker of the court, the social
service office of the local government unit or any child-placing or
child-caring agency, or the Department to prepare and submit child
and home study reports before the hearing if such reports had not
been attached to the petition due to unavailability at the time of
the filing of the latter; and
(6) a directive to the social worker of the court to conduct
counseling sessions with the biological parents on the matter of
adoption of the adoptee and submit her report before the date of
hearing.
At the discretion of the court, copies of the order of hearing
shall also be furnished the Office of the Solicitor General through
the provincial or city prosecutor, the Department and the biological
parents of the adoptee, if known.
If a change in the name of the adoptee is prayed for in the
petition, notice to the Solicitor General shall be mandatory.
Section 13. Child and Home Study Reports.— In preparing the
child study report on the adoptee, the concerned social worker shall
verify with the Civil Registry the real identity and registered name
of the adoptee. If the birth of the adoptee was not registered with
the Civil Registry, it shall be the responsibility of the social worker
to register the adoptee and secure a certificate of foundling or late
registration, as the case may be.
The social worker shall establish that the child is legally
available for adoption and the documents in support thereof are
valid and authentic, that the adopter has sincere intentions and that
the adoption shall inure to the best interests of the child.
In case the adopter is an alien, the home study report must
show the legal capacity to adopt and that his government allows the
adoptee to enter his country as his adopted child in the absence of
the certification required under Section 7(b) of Republic Act No.
8552.
If after the conduct of the case studies, the social worker finds
that there are grounds to deny the petition, he shall make the
proper recommendation to the court, furnishing a copy thereof to
the petitioner.
Section 14. Hearing.— Upon satisfactory proof that the order
of hearing has been published and jurisdictional requirements have
been complied with, the court shall proceed to hear the petition.
The petitioner and the adoptee must personally appear and the
Ma. Meta D. Aboga
IV DVOREF, SY: 2017-2018
former must testify before the presiding judge of the court on the
date set for hearing.
The court shall verify from the social worker and determine
whether the biological parent has been properly counseled against
making hasty decisions caused by strain or anxiety to give up the
child; ensure that all measures to strengthen the family have been
exhausted; and ascertain if any prolonged stay of the child in his
own home will be inimical to his welfare and interest.
Section 15. Supervised Trial Custody.— Before issuance of the
decree of adoption, the court shall give the adopter trial custody of
the adoptee for a period of at least six (6) months within which the
parties are expected to adjust psychologically and emotionally to
each other and establish a bonding relationship. The trial custody
shall be monitored by the social worker of the court, the
Department, or the social service of the local government unit, or
the child-placement or child-caring agency which submitted and
prepared the case studies. During said period, temporary parental
authority shall be vested in the adopter.
The court may, motu proprio or upon motion of any party,
reduce the period or exempt the parties if it finds that the same
shall be for the best interests of the adoptee, stating the reasons
therefor.
An alien adopter however must complete the 6-month trial
custody except the following:
a) a former Filipino citizen who seeks to adopt a relative
within the fourth (4th) degree of consanguinity or affinity;
or
b) one who seeks to adopt the legitimate child of his Filipino
spouse; or
c) one who is married to a Filipino citizen and seeks to adopt
jointly with his or her spouse the latter’s relative within the
fourth (4th) degree of consanguinity or affinity.
If the child is below seven (7) years of age and is placed with
the prospective adopter through a pre-adoption placement
authority issued by the Department, the court shall order that the
prospective adopter shall enjoy all the benefits to which the
biological parent is entitled from the date the adoptee is placed
with him.
The social worker shall submit to the court a report on the
result of the trial custody within two weeks after its termination.
Section 16. Decree of Adoption.— If the supervised trial
custody is satisfactory to the parties and the court is convinced from
the trial custody report and the evidence adduced that the adoption
shall redound to the best interests of the adoptee, a decree of
adoption shall be issued which shall take effect as of the date the
original petition was filed even if the petitioners die before its
issuance.
The decree shall:
A. State the name by which the child is to be known and
registered;
B. Order:
1) the Clerk of Court to issue to the adopter a certificate of
finality upon expiration of the 15-day reglementary period within
which to appeal;
2) the adopter to submit a certified true copy of the decree of
adoption and the certificate of finality to the Civil Registrar where
the child was originally registered within thirty (30) days from
pg. 31
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
receipt of the certificate of finality. In case of change of name, the
decree shall be submitted to the Civil Registrar where the court
issuing the same is situated.
3) the Civil Registrar of the place where the adoptee was
registered:
a. to annotate on the adoptee’s original certificate of birth
the decree of adoption within thirty (30) days from receipt of
the certificate of finality;
b. to issue a certificate of birth which shall not bear any
notation that it is a new or amended certificate and which shall
show, among others, the following: registry number, date of
registration, name of child, sex, date of birth, place of birth,
name and citizenship of adoptive mother and father, and the
date and place of their marriage, when applicable;
c. to seal the original certificate of birth in the civil registry
records which can be opened only upon order of the court
which issued the decree of adoption; and
d. to submit to the court issuing the decree of adoption
proof of compliance with all the foregoing within thirty days
from receipt of the decree.
If the adoptee is a foundling, the court shall order the Civil
Registrar where the foundling was registered, to annotate the
decree of adoption on the foundling certificate and a new birth
certificate shall be ordered prepared by the Civil Registrar in
accordance with the decree.
Section 17. Book of Adoptions.— The Clerk of Court shall keep
a book of adoptions showing the date of issuance of the decree in
each case, compliance by the Civil Registrar with Section 16(B)(3)
and all incidents arising after the issuance of the decree.
Section 18. Confidential Nature of Proceedings and
Records.— All hearings in adoption cases, after compliance with the
jurisdictional requirements shall be confidential and shall not be
open to the public. All records, books and papers relating to the
adoption cases in the files of the court, the Department, or any
other agency or institution participating in the adoption
proceedings shall be kept strictly confidential.
If the court finds that the disclosure of the information to a
third person is necessary for security reasons or for purposes
connected with or arising out of the adoption and will be for the
best interests of the adoptee, the court may, upon proper motion,
order the necessary information to be released, restricting the
purposes for which it may be used.
Section 19. Rescission of Adoption of the Adoptee.— 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.
The adoption may be rescinded based on any of the following
grounds committed by the adopter:
1) repeated physical and verbal maltreatment by the adopter
despite having undergone counseling;
2) attempt on the life of the adoptee;
3) sexual assault or violence; or
4) abandonment or failure to comply with parental
obligations.
Adoption, being in the best interests of the child, shall not be
subject to rescission by the adopter. However, the adopter may
disinherit the adoptee for causes provided in Article 919 of the Civil
Code.
Ma. Meta D. Aboga
IV DVOREF, SY: 2017-2018
NOTE: The adopter cannot rescind the adoption. It is only
the adoptee who is allowed to rescind the adoption. A minor
may file a petition for rescission provided he is assisted by the
DSWD or if he is incapacitated he must be assisted by his
guardian or his counsel. The rescission must be based on the
above grounds.
If the petitioner is incapacitated or incompetent at the time
of adoption, the petition must be filed within 5 years after he
reaches the age of majority or recovers from such
incompetence.
Section 20. Venue.— The petition shall be filed with the Family
Court of the city or province where the adoptee resides.
Section 21. Time within which to file petition.— 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.
Section 22. Order to Answer.— The court shall issue an order
requiring the adverse party to answer the petition within fifteen
(15) days from receipt of a copy thereof. The order and copy of the
petition shall be served on the adverse party in such manner as the
court may direct.
Section 23. Judgment.— If the court finds that the allegations
of the petition are true, it shall render judgment ordering the
rescission of adoption, with or without costs, as justice requires.
The court shall order that the parental authority of the
biological parent of the adoptee, if known, or the legal custody of
the Department shall be restored if the adoptee is still a minor or
incapacitated and declare that the reciprocal rights and obligations
of the adopter and the adoptee to each other shall be extinguished.
The court shall further declare that successional rights shall
revert to its status prior to adoption, 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.
The court shall further order the Civil Registrar where the
adoption decree was registered to cancel the new birth certificate
of the adoptee and reinstate his original birth or foundling
certificate.
Section 24. Service of Judgment.— A certified true copy of the
judgment together with a certificate of finality issued by the Branch
Clerk of the Court which rendered the decision in accordance with
the preceding Section shall be served by the petitioner upon the
Civil Registrar concerned within thirty (30) days from receipt of the
certificate of finality. The Civil Registrar shall forthwith enter the
rescission decree in the register and submit proof of compliance to
the court issuing the decree and the Clerk of Court within thirty (30)
days from receipt of the decree.
The Clerk of Court shall enter the compliance in accordance
with Section 17 hereof.
Section 25. Repeal.— This supersedes Rule 99 on Adoption
and Rule 100 of the Rules of Court.
pg. 32
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
B. Inter-Country Adoption
Section 26. Applicability.— The following sections apply to
inter-country adoption of Filipino children by foreign nationals and
Filipino citizens permanently residing abroad.
Section 27. Objectives.— The State shall:
a) consider inter-country adoption as an alternative means of
child care, if the child cannot be placed in a foster or an adoptive
family or cannot, in any suitable manner, be cared for in the
Philippines;
b) ensure that the child subject of inter-country adoption
enjoys the same protection accorded to children in domestic
adoption; and
c) take all measures to ensure that the placement arising
therefrom does not result in improper financial gain for those
involved.
Section 28. 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.
Section 29. Who may be adopted.— Only a child legally
available for domestic adoption may be the subject of inter-country
adoption.
Section 30. Contents of Petition.— The petitioner must allege:
a) his age and the age of the child to be adopted, showing that
he is at least twenty-seven (27) years of age and at least sixteen (16)
years older than the child to be adopted at the time of application,
unless the petitioner is the parent by nature of the child to be
adopted or the spouse of such parent, in which case the age
difference does not apply;
b) if married, the name of the spouse who must be joined as
co-petitioner except when the adoptee is a legitimate child of his
spouse;
c) that he 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 country;
d) that he has not been convicted of a crime involving moral
turpitude;
e) that he is eligible to adopt under his national law;
f) that he can provide the proper care and support and instill
the necessary moral values and example to all his children, including
the child to be adopted;
g) that he agrees to uphold the basic rights of the child, as
embodied under Philippine laws and the U. N. Convention on the
Rights of the Child, and to abide by the rules and regulations issued
to implement the provisions of Republic Act No. 8043;
h) that he comes from a country with which the Philippines has
diplomatic relations and whose government maintains a similarly
authorized and accredited agency and that adoption of a Filipino
child is allowed under his national laws; and
i) that he possesses all the qualifications and none of the
disqualifications provided in this Rule, in Republic Act No. 8043 and
in all other applicable Philippine laws.
NOTE: The difference here is the 27-year old requirement which
is not found in the domestic adoption rule. All other
requirements are the same except paragraph (g)
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Section 31. Annexes.— The petition for adoption shall contain
the following annexes written and officially translated in English:
a) Birth certificate of petitioner;
b) Marriage contract, if married, and, if applicable, the divorce
decree, or judgment dissolving the marriage;
c) Sworn statement of consent of petitioner’s biological or
adopted children above ten (10) years of age;
d) Physical, medical and psychological evaluation of the
petitioner certified by a duly licensed physician and psychologist;
e) Income tax returns or any authentic document showing the
current financial capability of the petitioner;
f) Police clearance of petitioner issued within six (6) months
before the filing of the petitioner;
g) Character reference from the local church/minister, the
petitioner’s employer and a member of the immediate community
who have known the petitioner for at least five (5) years;
h) Full body postcard-size pictures of the petitioner and his
immediate family taken at least six (6) months before the filing of
the petition.
Section 32. Duty of Court.— The court, after finding that the
petition is sufficient in form and substance and a proper case for
inter-country adoption, shall immediately transmit the petition to
the Inter-Country Adoption Board for appropriate action.
Section 33. Effectivity.— This Rule shall take effect on August
22, 2002 following its publication in a newspaper of general
circulation.
RULE 98
Trustees
Section 1. Where trustee appointed. — A trustee
necessary to carry into effect the provisions of a will on
written instrument shall be appointed by the Court of First
Instance in which the will was allowed, if it be a will allowed
in the Philippines, otherwise by the Court of First Instance of
the province in which the property, or some portion thereof,
affected by the trust is situated.
Section 2. Appointment and powers of trustees under
will. Executor of former trustee need not administer trust.
— 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, the proper Court of First
Instance may, after notice to all persons interested, appoint
a trustee who shall have the same rights, powers, and duties,
and in whom the estate shall vest, as if he had been
appointed by the testator. No person succeeding to a trust as
executor or administrator of a former trustee shall be
required to accept such trust.
Section 3. Appointment and powers of new trustee
under written instrument. — When a trustee under a written
instrument declines, resigns, dies or removed before the
objects of the trust are accomplished, and no adequate
provision is made in such instrument for supplying the
vacancy, the proper Court of First Instance may, after due
notice to all persons interested, appoint a new trustee to act
alone or jointly with the others, as the case may be. Such new
trustee shall have and exercise the same powers, right, and
pg. 33
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
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 or jointly with
the others.
Section 4. Proceedings where trustee appointed
abroad. — When land in the Philippines is held in trust for
persons resident here by a trustee who derives his authority
from without the Philippines, such trustee shall, on petition
filed in the Court of First Instance of the province where the
land is situated, and after due notice to all persons interested,
be ordered to apply to the court for appointment as trustee;
and upon his neglect or refusal to comply with such order, the
court shall declare such trust vacant, and shall appoint a new
trustee in whom the trust estate shall vest in like manner as
if he had been originally appointed by such court.
Section 5. Trustee must file bond. — Before entering on
the duties of his trust, a trustee shall file with the clerk of the
court having jurisdiction of the trust a bond in the amount
fixed by the judge of said court, payable to the Government
of the Philippines and sufficient and available for the
protection of any party in interest, and a trustee who neglects
to file such bond shall be considered to have declined or
resigned the trust; but the court may until further order
exempt a trustee under a will from giving a bond when the
testator has directed or requested such exemption and may
so exempt any trustee 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.
Section 6. Conditions included in bond. — The following
conditions shall be deemed to be part of the bond whether
written therein or not;
(a) That the trustee will make and return to the court, at
such time as it may order, a true inventory of all the real and
personal estate belonging to him as trustee, which at the
time of the making of such inventory shall have come to his
possession or knowledge;
(b) That he will manage and dispose of all such estate,
and faithfully discharge his trust in relation thereto,
according to law and the will of the testator or the provisions
of the instrument or order under which he is appointed;
(c) That he will render upon oath at least once a year
until his trust is fulfilled, unless he is excused therefrom in any
year by the court, a true account of the property in his hands
and the management and disposition thereof, and will render
such other accounts as the court may order;
(d) That at the expiration of his trust he will settle his
account in court and pay over and deliver all the estate
remaining in his hands, or due from him on such settlement,
to the person or persons entitled to thereto.
But when the trustee is appointed as a successor to a
prior trustee, the court may dispense with the making and
return of an inventory, if one has already been filed, and in
such case the condition of the bond shall be deemed to be
altered accordingly.
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Section 7. Appraisal. Compensation of trustee. —
When an inventory is required to be returned by a trustee,
the estate and effects belonging to the trust shall be
appraised and the court may order one or more inheritance
tax appraisers to assist in the appraisement. The
compensation of the trustee shall be fixed by the court, if it
be not determined in the instrument creating the trust.
Section 8. Removal or resignation of trustee. — The
proper Court of First Instance may, upon petition of the
parties beneficially interested and after due notice to the
trustee and hearing, remove a trustee if such removal
appears essential in the interest of the petitioner. The court
may also, after due notice to all persons interested, remove a
trustee who is insane or otherwise incapable of discharging
his trust or evidently unsuitable therefor. A trustee, whether
appointed by the court or under a written instrument, may
resign his trust if it appears to the court proper to allow such
resignation.
Section 9. Proceedings for sale or encumbrance of trust
estate. — When the sale or encumbrance of any real or
personal estate held in trust is necessary or expedient, the
court having jurisdiction of the trust may, on petition and
after due notice and hearing, order such sale or encumbrance
to be made, and the re-investment and application of the
proceeds thereof in such manner as will best effect the
objects of the trust. The petition, notice, hearing, order of
sale or encumbrance, and record of proceedings, shall
conform as nearly as may be to the provisions concerning the
sale or imcumbrance by guardians of the property of minors
or other wards.
RULE 99
Adoption and Custody of Minors
New Rule on Adoption, effective August 22, 2002
RULE 100
Rescission and Revocation of Adoption
Section 1. Who may file petition; grounds. — A minor
or other incapacitated person may, through a guardian or
guardian ad litem, petition for the rescission or revocation of
his or her adoption for the same causes that authorize the
deprivation of parental authority.
The adopter may, likewise, petition the court for the
rescission of revocation of the adoption in any of these cases:
(a) If the adopted person has attempted against the file
of the adopter;
(b) When the adopted minor has abandoned the home
of the adopter for more than three (3) years;
(c) When by other acts the adopted person has
repudiated the adoption.
Section 2. Order to answer. — The court in which the
petition is filed shall issue an order requiring the adverse
party to answer the petition within fifteen (15) days from
receipt of a copy thereof. The order and a copy of the petition
shall be served on the adverse party in such manner as the
court may direct
Section 3. Judgment. — If upon trial, on the day set
therefor, the court finds that the allegations of the petition
pg. 34
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
are true, it shall render judgment ordering the rescission or
revocation of the adoption, with or without costs, as justice
requires.
Section 4. Service of Judgment. — A certified copy of the
judgment rendered in accordance with the next preceding
section shall be served upon the civil registrar concerned,
within thirty (30) days from rendition thereof, who shall
forthwith enter the action taken by the court in the register.
Section 5. Time within which to file petition. — A minor
or other incapacitated person must file the petition for
rescission or revocation of adoption within the five (5) years
following his majority, or if he was incompetent at the time
of the adoption, within the five (5) years following the
recovery from such incompetency.
The adopter must also file the petition to set aside the
adoption within five (5) years from the time the cause or
causes giving rise to the rescission or revocation of the same
took place.
RULE 101
Proceedings for Hospitalization of Insane Persons
Section 1. Venue, Petition for commitment. — A
petition for the commitment of a person to a hospital or other
place for the insane may be filed with the Court of First
Instance of the province where the person alleged to be
insane is found. The petition shall be filed by the Director of
Health in all cases where, in his opinion, such commitment is
for the public welfare, or for the welfare of said person who,
in his judgment, is insane and such person or the one having
charge of him is opposed to his being taken to a hospital or
other place for the insane.
Section 2. Order for hearing. — If the petition filed is
sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix a date for the
hearing thereof, and copy of such order shall be served on the
person alleged to be insane, and to the one having charge
him, or on such of his relatives residing in the province or city
as the judge may deem proper. The court shall furthermore
order the sheriff to produce the alleged insane person, if
possible, on the date of the hearing.
Section 3. Hearing and judgment. — Upon satisfactory
proof, in open court on the date fixed in the order, that the
commitment applied for is for the public welfare or for the
welfare of the insane person, and that his relatives are unable
for any reason to take proper custody and care of him, the
court shall order his commitment to such hospital or other
place for the insane as may be recommended by the Director
of Health. The court shall make proper provisions for the
custody of property or money belonging to the insane until a
guardian be properly appointed.
Section 4. Discharge of insane. — When, in the opinion
of the Director of Health, the person ordered to be committed
to a hospital or other place for the insane is temporarily or
permanently cured, or may be released without danger he
may file the proper petition with the Court of First Instance
which ordered the commitment.
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Section 5. Assistance of fiscal in the proceeding. — It
shall be the duty of the provincial fiscal or in the City of
Manila the fiscal of the city, to prepare the petition for the
Director of Health and represent him in court in all
proceedings arising under the provisions of this rule.
From Remedial Law Compendium, Regalado
Who files the Petition
The petition for the hospitalization of insane persons may be
filed by the person in custody or having charge of said insane
person. If he refuses to do so and where it is required for the welfare
of the insane person or of the public, the petition shall be filed by
the Director of Health of the present authorized officer.
NOTE: Where the insane person was judicially committed to
the hospital or asylum, the Director of Health cannot order his
release without the approval of the RTC which ordered the
commitment. Also, the said court cannot order his release without
the recommendation of the Director of Health.
Aside from the procedure outlined in this Rule, an imbecile or
insane person who has committed a felony can also be directly
ordered committed by the trial court and he cannot be released
without the permission of the said court.
JS: In case of involuntary commitment, when the case was
going on, the accused might become insane, the court may suspend
the hearing of the case and recommend the commitment of the
insane person for mental health examination or treatment until he
is capable of continuing the trial. .
SC Circular No. 02-1-19 the Rule on Commitment of Children (April
15, 2002)
In so far the commitment of children, this Circular governs. This
is the means by which a child may be adopted when he is
dependent, abandoned, neglected.
The purpose of this rule is to protect a child from all forms of
neglect, abuse, cruelty, exploitation and other condition prejudicial
to the child’s development.
RULE 102
Habeas Corpus
***Provisions in Habeas corpus will be asked in the Finals
Habeas Corpus in English is “You have the body.” This can be issued by
the SC or by the CA which is enforceable in the entire Philippines. This
can also be issued by the RTC but is only enforceable within the judicial
region. In the absence of any RTC judges, MTC judges has special
jurisdiction to issue a writ of habeas corpus.
This is a highly prerogative writ which is considered as an exceptional
remedy to release a person whose liberty is illegally restrained.
To what habeas corpus extends
Section 1. Except as otherwise expressly provided by
law, the writ of habeas corpus shall extend to all cases of
illegal confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto.
pg. 35
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
Scope of Habeas Corpus
1. In all cases of illegal confinement or detention by which a person
is deprived of his liberty; and
2. Cases by which the rightful custody of the person is withheld
from the person entitled thereto.
NOTE: If you are not allowed by your spouse to have custody over
your children, the proper remedy is a petition for a writ of habeas
corpus.
If the custody of the person is acquired by virtue of judicial
process or he is arrested by virtue of warrant of arrest or valid
warrantless arrest and you want to secure his temporary liberty, you
cannot resort to a petition for a writ of habeas corpus because his
detention is legal and valid.
In the case of Zacharias Cruz (30 SCRA 729), a writ of habeas
corpus is not available to one who is already out of custody.
Similarly, habeas corpus may not be used to obtain evidence on
the whereabouts of the person or as a means of finding out who has
specifically abducted or caused the disappearance of the person. The
remedy is a Writ of Amparo if the case pertains to the enforced
disappearance of a persons or a Writ of Habeas Data if you want to
obtain information.
The reason why a petition for Habeas Corpus is not a proper
remedy in case of enforced disappearance is because in a petition for
habeas corpus, the one in custody of the person subject of the petition
must be alleged.
Writ of Amparo
It 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.
It covers extralegal killings and enforced disappearances or
threats thereof.
Indispensable element of the Writ. For the protective writ of
Amparo to issue, allegation and proof that the persons subject thereof
are missing is not enough. It must also be shown and proved by
substantial evidence that the disappearance was carried out by, or
with authorization, support or acquiescence of, the State or a political
organization, followed by a refusal to acknowledge the same or give
information on the fate or whereabouts of said missing persons with
the intention of removing them from the protection of the law for a
prolonged period of time.
Simply put, the petitioner in an Amparo case has the burden of
proving by substantial evidence the indispensable element of
government participation.
Writ of Habeas Data
It 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.
Habeas Data vis-à-vis Amparo
Habeas data essentially allows families of victims of enforced
disappearance to petition the courts to compel government and
security officials to allow access to documents about the missing
person.
While Amparo denies state officials the defense of denial with
which they normally evade petitions for habeas corpus that families of
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missing persons file, and compels them instead to exert efforts to find
these missing persons.
JS: In the case of Malinao vs Raveles (108 Phils 1159), the petition
for Writ of Habeas Corpus was held by the SC as a proper remedy to
prevent the court from rendering a void decision thereby invalidly
arresting the accused.
“As a rule, where the court has no jurisdiction to impose the
sentence, the writ of habeas corpus will lie. Where the petitioner is
held upon a judicial order, the writ will lie where the order is void
because the court issuing it had no jurisdiction over the crime charged,
or of the person of the accused where the latter had challenged on
time, as in the instant case, the jurisdiction of the court over his
person.”
Another case when the court allows the writ of habeas corpus as
a proper remedy is in case of bail hearing where the court allowed the
imposition of bail which is not commensurate to the penalty – thus
there was an excessive bail. Another is when the penalty imposed by
the court is incorrect, a petition for writ of habeas corpus is a proper
remedy.
Section 2. 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.
Section 3. Requisites of application therefor. —
Application for the writ shall be by petition signed and
verified either by the party for whose relief it is intended, or
by some person on his behalf, and shall set forth:
(a) That the person in whose behalf the application is
made is imprisoned or restrained 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.
Section 4. When writ not allowed or discharge
authorized. — If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a judgment
or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or
make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall
not be discharged by reason of any informality or defect in
the process, judgment, or order. Not shall anything in this
rule be held to authorize the discharge of a person charged
pg. 36
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment.
Section 5. 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.
Section 6. To whom writ directed, and what to require.
— In case of imprisonment or restraint by an officer, the writ
shall be directed to him, and shall command him to have the
body of the person restrained of his liberty before the court
or judge designated in the writ at the time and place therein
specified. In case of imprisonment or restraint by a person not
an officer, the writ shall be directed to an officer, and shall
command him to take and have the body of the person
restrained of his liberty before the court or judge designated
in the writ at the time and place therein specified, and to
summon the person by whom he is restrained then and there
to appear before said court or judge to show the cause of the
imprisonment or restraint.
Section 7. How prisoner designated and writ served. —
The person to be produced should be designated in the writ
by his name, if known, but if his name is not known he may
be otherwise described or identified. The writ may be served
in any province by the sheriff or other proper officer, or by a
person deputed by the court or judge. Service of the writ shall
be made by leaving the original with the person to whom it is
directed and preserving a copy on which to make return or
service. If that person cannot be found, or has not the
prisoner in his custody, then the service shall be made on any
other person having or exercising such custody.
Section 8. How writ executed and returned. — The
officer to whom the writ is directed shall convey the person
so imprisoned or restrained, and named in the writ, before
the judge allowing the writ, or in case of his absence or
disability, before some other judge of the same court, on the
day specified in the writ, unless, from sickness or infirmity of
the person directed to be produced, such person cannot,
without danger, be bought before the court or judge; and the
officer shall make due return of the writ, together with the
day and the cause of the caption and restraint of such person
according to the command thereof.
Section 9. Defect of form. — No writ of habeas
corpus can be disobeyed for defect of form, if it sufficiently
appears therefrom in whose custody or under whose
restraint the party imprisoned or restrained is held and the
court or judge before whom he is to be bought.
Section 10. Contents of return. — When the person to
be produced is imprisoned or restrained by an officer, the
person who makes the return shall state therein, and in other
cases the person in whose custody the prisoner is found shall
state, in writing to the court or judge before whom the writ
is returnable, plainly and unequivocably:
(a) Whether he has or has not the party in his custody or
power, or under restraint;
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(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.
Section 11. Return to be signed and sworn to. — The
return or statement shall be signed by the person who makes
it; and shall also be sworn by him if the prisoner is not
produced, and in all other cases unless the return is made and
signed by a sworn public officer in his official capacity.
Section 12. Hearing on return. Adjournments. — When
the writ is returned before one judge, at a time when the
court is in session, he may forthwith adjourn the case into the
court, there to be heard and determined. The court or judge
before whom the writ is returned or adjourned must
immediately proceed to hear and examine the return, and
such other matters as are properly submitted for
consideration, unless for good cause shown the hearing is
adjourned, in which event the court or judge shall make such
order for the safekeeping of the person imprisoned or
restrained as the nature of the case requires. If the person
imprisoned or restrained is not produced because of his
alleged sickness or infirmity, the court or judge must be
satisfied that it is so grave that such person cannot be
produced without danger, before proceeding to hear and
dispose of the matter. On the hearing the court or judge shall
disregard matters of form and technicalities in respect to any
warrant or order of commitment of a court or officer
authorized to commit by law.
Section 13. When the return evidence, and when only
a plea. — If it appears that the prisoner is in custody under a
warrant of commitment in pursuance of law, the return shall
be considered prima facie evidence of the cause of restraint,
but if he is restrained of his liberty by any alleged private
authority, the return shall be considered only as a plea of the
facts therein set forth, and the party claiming the custody
must prove such facts.
Section 14. When person lawfully imprisoned
recommitted, and when let to bail. — If it appears that the
prisoner was lawfully committed, and is plainly and
specifically charged in the warrant of commitment with an
offense punishable by death, he shall not be released,
discharged, or bailed. If he is lawfully imprisoned or
restrained on a charge of having committed an offense not
so punishable, he may be recommitted to imprisonment or
admitted to bail in the discretion of the court or judge. If he
be admitted to bail, he shall forthwith file a bond in such sum
as the court or judge deems reasonable, considering the
circumstances of the prisoner and the nature of the offense
charged, conditioned for his appearance before the court
where the offense is properly cognizable to abide its order of
judgment; and the court or judge shall certify the
pg. 37
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
proceedings, together with the bond, forthwith to the proper
court. If such bond is not so filed, the prisoner shall be
recommitted to confinement.
Section 15. When prisoner discharged if no appeal. —
When the court or judge has examined into the cause of
caption and restraint of the prisoner, and is satisfied that he
is unlawfully imprisoned or restrained, he shall forthwith
order his discharge from confinement, but such discharge
shall not be effective until a copy of the order has been served
on the officer or person detaining the prisoner. If the officer
or person detaining the prisoner does not desire to appeal,
the prisoner shall be forthwith released.
Section 16. Penalty for refusing to issue writ, or for
disobeying the same. — A clerk of a court who refuses to
issue the writ after allowance thereof and demand therefor,
or a person to whom a writ is directed, who neglects or
refuses to obey or make return of the same according to the
command thereof, or makes false return thereof, or who,
upon demand made by or on behalf of the prisoner, refuses
to deliver to the person demanding, within six (6) hours after
the demand therefor, a true copy of the warrant or order of
commitment, shall forfeit to the party aggrieved the sum of
one thousand pesos, to be recorded in a proper action, and
may also be punished by the court or judge as for contempt.
Section 17. Person discharged not to be again
imprisoned. — A person who is set at liberty upon a writ
of habeas corpus shall not be again imprisoned for the same
offense unless by the lawful order or process of a court having
jurisdiction of the cause or offense; and a person who
knowingly, contrary to the provisions of this rule, recommits
or imprisons, or causes to be committed or imprisoned, for
the same offense, or pretended offense, any person so set at
liberty, or knowingly aids or assists therein, shall forfeit to the
party aggrieved the sum of one thousand pesos, to be
recovered in a proper action, notwithstanding any colorable
pretense or variation in the warrant of commitment, and may
also be punished by the court or judge granting the writ as
for contempt.
Section 18. When prisoner may be removed from one
custody to another. — A person committed to prison, or in
custody of an officer, for any criminal matter, shall not be
removed therefrom into the custody of another unless by
legal process, or the prisoner be delivered to an inferior
officer to carry to jail, or, by order of the proper court or
judge, be removed from one place to another within the
Philippines for trial, or in case of fire epidemic, insurrection,
or other necessity or public calamity; and a person who, after
such commitment, makes signs, or counter-signs any order
for such removal contrary to this section, shall forfeit to the
party aggrieved the sum of one thousand pesos, to be
recovered in a proper action.
A.M. No. 03-04-04-SC
RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS
IN RELATION TO CUSTODY OF MINORS
SECTION 1. Applicability. - This rule shall apply to petitions for
custody of minors and writs of habeas corpus in relation thereto.
Ma. Meta D. Aboga
IV DVOREF, SY: 2017-2018
The Rules of Court shall apply suppletorily.
Section 2. Petition for custody of minors; who may file.- A
verified petition for the rightful custody of a minor may be filed by
any person claiming such right. The party against whom it may be
filed shall be designated as the respondent.
Section 3. Where to file petition. - The petition for custody of
minors shall be filed with the Family Court of the province or city
where the petitioner resides or where the minor may be found.
Section 4. Contents of petition. - The verified petition shall
allege the following:
a. The personal circumstances of the petitioner and of the
respondent;
b. The name, age and present whereabouts of the minor and
his or her relationship to the petitioner and the respondent;
c. The material operative facts constituting deprivation of
custody; and
d. Such other matters which are relevant to the custody of the
minor.
The verified petition shall be accompanied by a certificate
against forum shopping, which the petitioner must sign personally.
Section 5. Summons; personal service on respondent. - If the
court is satisfied that the petition is sufficient in form and
substance, it shall direct the clerk of court to issue summons, which
shall be served together with a copy of the petition personally on
the respondent.
Section 6. Motion to Dismiss. - A motion to dismiss the
petition is not allowed except on the ground of lack of jurisdiction
over the subject matter or over the parties. Any other ground that
might warrant the dismissal of the petition may be raised as an
affirmative defense in the answer.
Section 7. Verified Answer. - The respondent shall file an
answer to the petition, personally verified by him, within five days
after service of summons and a copy of the petition.
Section 8. Case study; duty of social worker. - Upon the filing
of the verified answer or the expiration of the period to file it, the
court may order a social worker to make a case study of the minor
and the parties and to submit a report and recommendation to the
court at least three days before the scheduled pre-trial.
Section 9. Notice of mandatory pre-trial. - Within fifteen days
after the filing of the answer or the expiration of the period to file
answer, the court shall issue an order: (1) fixing a date for the pre-
trial conference; (2) directing the parties to file and serve their
respective pre-trial briefs in such manner as shall ensure receipt
thereof by the adverse party at least three days before the date of
pre-trial; and (3) requiring the respondent to present the minor
before the court.
The notice of its order shall be served separately on both the
parties and their respective counsels. The pre-trial is mandatory.
Section 10. Contents of pre-trial brief. - The pre-trial brief shall
contain the following:
a. A statement of the willingness of the parties to enter into
agreements that may be allowed by law, indicating its
terms;
b. A concise statement of their respective claims together
with the applicable laws and authorities;
pg. 38
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
c. Admitted facts and proposed stipulations of facts;
d. The disputed factual and legal issues;
e. All the evidence to be presented, briefly stating or
describing its nature and purpose;
f. The number and names of the witnesses and their
respective affidavits which shall serve as the affiant's
testimony on direct examination; and
g. Such other matters as the court may require to be included
in the pre-trial brief.
h. Failure to file the pre-trial brief or to comply with its
required contents shall have the same effect as failure to
appear at the pre-trial.
Section 11. Effect of failure to appear at the pre-trial.-(a) If the
petitioner fails to appear personally at the pre-trial, the case shall
be dismissed, unless his counsel or a duly authorized representative
appears in court and proves a valid excuse for the non-appearance
of the petitioner.
(b) If the respondent has filed his answer but fails to appear at
the pre-trial, the petitioner shall be allowed to present his evidence
ex parte. The court shall then render judgment on the basis of the
pleadings and the evidence thus presented.
Section 12. What may be done at pre-trial. - At the pre-trial,
the parties may agree on the custody of the minor. If the parties fail
to agree, the court may refer the matter to a mediator who shall
have five days to effect an agreement between the parties. If the
issue is not settled through mediation, the court shall proceed with
the pre-trial conference, on which occasion it shall consider such
other matters as may aid in the prompt disposition of the petition.
Section 13. Provisional order awarding custody. - After an
answer has been filed or after expiration of the period to file it, the
court may issue a provisional order awarding custody of the minor.
As far as practicable, the following order of preference shall be
observed in the award of custody:
a. Both parents jointly;
b. Either parent, taking into account all relevant
considerations, especially the choice of the minor over
seven years of age and of sufficient discernment, unless the
parent chosen is unfit;
c. The grandparent, or if there are several grandparents, the
grandparent chosen by the minor over seven years of age
and of sufficient discernment, unless the grandparent
chosen is unfit or disqualified;
d. The eldest brother or sister over twenty-one years of age,
unless he or she is unfit or disqualified;
e. The actual custodian of the minor over twenty-one years of
age, unless the former is unfit or disqualified; or
f. Any other person or institution the court may deem
suitable to provide proper care and guidance for the minor.
Section 14. Factors to consider in determining custody. - In
awarding custody, the court shall consider the best interests of the
minor and shall give paramount consideration to his material and
moral welfare. 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.
The court shall also consider the following:
Ma. Meta D. Aboga
IV DVOREF, SY: 2017-2018
a. Any extrajudicial agreement which the parties may have
bound themselves to comply with respecting the rights of
the minor to maintain direct contact with the non
custodial parent on a regular basis, except when there is
an existing threat or danger of physical, mental, sexual or
emotional violence which endangers the safety and best
interests of the minor;
b. The desire and ability of one parent to foster an open and
loving relationship between the minor and the other
parent;
c. The health, safety and welfare of the minor;
d. Any history of child or spousal abuse by the person
seeking custody or who has had any filial relationship with
the minor, including anyone courting the parent;
e. The nature and frequency of contact with both parents;
f. Habitual use of alcohol, dangerous drugs or regulated
substances;
g. Marital misconduct;
h. The most suitable physical, emotional, spiritual,
psychological and educational environment for the
holistic development and growth of the minor; and
i. The preference of the minor over seven years of age and
of sufficient discernment, unless the parent chosen is
unfit.
Section 15. Temporary visitation rights. - The court shall
provide in its order awarding provisional custody appropriate
visitation rights to the non-custodial parent or parents, unless the
court finds said parent or parents unfit or disqualified.
The temporary custodian shall give the court and non custodial
parent or parents at least five days' notice of any plan to change the
residence of the minor or take him out of his residence for more
than three days provided it does not prejudice the visitation rights
of the non-custodial parent or parents.
Section 16. Hold Departure Order. - The minor child subject of
the petition shall not be brought out of the country without prior
order from the court while the petition is pending.
The court, motu proprio or upon application under oath, may
issue ex parte a hold departure order, addressed to the Bureau of
Immigration and Deportation, directing it not to allow the
departure of the minor from the Philippines without the permission
of the court.
The Family Court issuing the hold departure order shall furnish
the Department of Foreign Affairs and the Bureau of Immigration
and Deportation of the Department of Justice a copy of the hold
departure order within twenty-four hours from its issuance and
through the fastest available means of transmittal.
The hold departure order shall contain the following
information:
(a) The complete name (including the middle name), the date
and place of birth, the nationality and the place of last
residence of the person against whom a hold departure
order has been issued or whose departure from the
country has been enjoined;
(b) The complete title and docket number of the case in which
the hold departure order was issued;
(c) The specific nature of the case;
(d) The date of the hold departure order; and
(e) A recent photograph, if available, of the party against
whom a hold departure order has been issued or whose
departure from the country has been enjoined.
pg. 39
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
The court may recall the hold departure order motu proprio,
or upon verified motion of any of the parties after summary
hearing, subject to such terms and conditions as may be necessary
for the best interests of the minor.
Section 17. Protection Order. - The court may issue a
Protection Order requiring any person:
(f) To stay away from the home, school, business, or place of
employment of the minor, other parent or any other party,
or from any other specific place designated by the court;
(g) To cease and desist from harassing, intimidating, or
threatening such minor or the other parent or any person
to whom custody of the minor is awarded;
(h) To refrain from acts of commission or omission that create
an unreasonable risk to the health, safety, or welfare of the
minor;
(i) To permit a parent, or a party entitled to visitation by a
court order or a separation agreement, to visit the minor at
stated periods;
(j) To permit a designated party to enter the residence during
a specified period of time in order to take personal
belongings not contested in a proceeding pending with the
Family Court; and
(k) To comply with such other orders as are necessary for the
protection of the minor.
Section 18. Judgment. - After trial, the court shall render
judgment awarding the custody of the minor to the proper party
considering the best interests of the minor.
If it appears that both parties are unfit to have the care and
custody of the minor, the court may designate either the paternal
or maternal grandparent of the minor, or his oldest brother or
sister, or any reputable person to take charge of such minor, or
commit him to any suitable home for children.
In its judgment, the court may order either or both parents to
give an amount necessary for the support, maintenance and
education of the minor, irrespective of who may be its custodian. In
determining the amount of support, the court may consider the
following factors: (1) the financial resources of the custodial and
non-custodial parent and those of the minor; (2) the physical and
emotional health, special needs, and aptitude of the minor; (3) the
standard of living the minor has been accustomed to; and (4) the
non-monetary contributions that the parents would make toward
the care and well-being of the minor.
The court may also issue any order that is just and reasonable
permitting the parent who is deprived of the care and custody of
the minor to visit or have temporary custody.
Section 19. Appeal. - No appeal from the decision shall be
allowed unless the appellant has filed a motion for reconsideration
or new trial within fifteen days from notice of judgment.
An aggrieved party may appeal from the decision by filing a
Notice of Appeal within fifteen days from notice of the denial of the
motion for reconsideration or new trial and serving a copy thereof
on the adverse parties.
Section 20. Petition for writ of habeas corpus. - 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.
Ma. Meta D. Aboga
IV DVOREF, SY: 2017-2018
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.
Section 21. Confidentiality of proceedings. - The hearings on
custody of minors may, at the discretion of the court, be closed to
the public and the records of the case shall not be released to non-
parties without its approval.
Section 22. Effectivity. - This Rule shall take effect on May 15,
2003 following its publication in a newspaper of general circulation
not later than April 30, 2003.
RULE 103
Change of Name
Section 1. Venue. — A person desiring to change his
name shall present the petition to the Court of First Instance
of the province in which he resides, or, in the City of Manila,
to the Juvenile and Domestic Relations Court.
Section 2. Contents of petition. — A petition for change
of name shall be signed and verified by the person desiring
his name changed, or some other person on his behalf, and
shall set forth:
(a) That the petitioner has been a bona fide resident of
the province where the petition is filed for at least three (3)
years prior to the date of such filing;
(b) The cause for which the change of the petitioner's
name is sought;
(c) The name asked for.
Section 3. Order for hearing. — If the petition filed is
sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix a date and place
for the hearing thereof, and shall direct that a copy of the
order be published before the hearing at least once a week
for three (3) successive weeks in some newspaper of general
circulation published in the province, as the court shall deem
best. The date set for the hearing shall not be within thirty
(30) days prior to an election nor within four (4) month after
the last publication of the notice.
Section 4. Hearing. — Any interested person may
appear at the hearing and oppose the petition. The Solicitor
General or the proper provincial or city fiscal shall appear on
behalf of the Government of the Republic.
Section 5. Judgment. — Upon satisfactory proof in open
court on the date fixed in the order that such order has been
published as directed and that the allegations of the petition
are true, the court shall, if proper and reasonable cause
appears for changing the name of the petitioner, adjudge
pg. 40
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
that such name be changed in accordance with the prayer of
the petition.
Section 6. Service of judgment. — Judgments or orders
rendered in connection with this rule shall be furnished the
civil registrar of the municipality or city where the court
issuing the same is situated, who shall forthwith enter the
same in the civil register.
Take note of RA 9048 that instead of going to court you can
resort to administrative proceedings for the change of name. It is
settled that a change of name may be made even without judicial
intervention by virtue of RA 9048.
Rule 103 covers principally the change of surname or middle
name. For change of first name or nickname, the principal
governing law is RA 9048 which authorizes the local civil registrar or
the consul general to effect such change. It only pertains to clerical
or typographical errors and not to substantial changes and
corrections in the name of a person.
REPUBLIC ACT NO. 9048
March 22, 2001
An act authorizing the city or municipal Civil Registrar or the
Consul General to correct a clerical or typographical error in an
entry and/or change of first name or nickname in the civil register
without need of a judicial order, amending for this purpose
articles 376 and 412 of the civil code of the Philippines
Clerical Typographical errors. These are mistakes 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 misspelled name or misspelled place of birth 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
RA 9048 also allows consuls to correct or change name.
But take note under the adoption act, a change of name can
be prayed for in the same petition.
Republic Act No. 9255
February 24 2004
An act allowing illegitimate children to use the surname of their
father, amending for the purpose article 176 of executive order no.
209, otherwise known as the "Family Code of the Philippines"
SECTION 1. Article 176 of Executive Order No. 209, otherwise
known as the Family Code of the Philippines, is hereby amended to
read as follows:
"Article 176. Illegitimate children shall use the
surname and shall be under the parental authority of their
mother, and shall be entitled to support in conformity with
this Code. However, illegitimate children may use the
surname of their father if their filiation has been expressly
recognized by the father through the record of birth
appearing in the civil register, or when an admission in a
public document or private handwritten instrument is
made by the father. Provided, the father has the right to
institute an action before the regular courts to prove non-
filiation during his lifetime. The legitime of each
Ma. Meta D. Aboga
IV DVOREF, SY: 2017-2018
illegitimate child shall consist of one-half of the legitime
of a legitimate child."
NOTE: This law covers both registered and unregistered births
where the child uses the surname of his father. This applies to
children born before or after the effectivity of this law.
Change of name of Married women
There is no law which provides that the wife has to change her
name to that of the husband after her marriage with her husband.
The use of the husband’s names is only optional and permissive. It
is not obligatory.
Reason: This is in consonance with the principle that surnames
indicate descent.
Cases:
1. Silverio vs Republic
2. Republic vs Cagandahan
Rommel Jacinto Dantes Silverio vs. Republic of the Philippines
FACTS: On November 26, 2002, Silverio field a petition for the
change of his first name “Rommel Jacinto” to “Mely” and his sex
from male to female in his birth certificate in the RTC of Manila,
Branch 8, for reason of his sex reassignment. He alleged that he is a
male transsexual, he is anatomically male but thinks and acts like a
female. The Regional Trial Court ruled in favor of him, explaining
that it is consonance with the principle of justice and equality.
The Republic, through the OSG, filed a petition for certiorari in
the Court of Appeals alleging that there is no law allowing change
of name by reason of sex alteration. Petitioner filed a
reconsideration but was denied. Hence, this petition.
ISSUE: WON change in name and sex in birth certificate are
allowed by reason of sex reassignment.
HELD: No. A change of name is a privilege and not a right. It
may be allowed in cases where the name is ridiculous, tainted with
dishonor, or difficult to pronounce or write; a nickname is habitually
used; or if the change will avoid confusion. The petitioner’s basis of
the change of his name is that he intends his first name compatible
with the sex he thought he transformed himself into thru surgery.
The Court says that his true name does not prejudice him at all, and
no law allows the change of entry in the birth certificate as to sex
on the ground of sex reassignment. The Court denied the petition.
Republic vs Cagandahan
FACTS: Jennifer Cagandahan filed before the Regional Trial
Court Branch 33 of Siniloan, Laguna a Petition for Correction of
Entries in Birth Certificate of her name from Jennifer B. Cagandahan
to Jeff Cagandahan and her gender from female to male. It
appearing that Jennifer Cagandahan is suffering from Congenital
Adrenal Hyperplasia which is a rare medical condition where
afflicted persons possess both male and female characteristics.
Jennifer Cagandahan grew up with secondary male characteristics.
To further her petition, Cagandahan presented in court the medical
certificate evidencing that she is suffering from Congenital Adrenal
Hyperplasia which certificate is issued by Dr. Michael Sionzon of the
Department of Psychiatry, University of the Philippines-Philippine
General Hospital, who, in addition, explained that “Cagandahan
genetically is female but because her body secretes male
hormones, her female organs did not develop normally, thus has
organs of both male and female.” The lower court decided in her
pg. 41
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
favor but the Office of the Solicitor General appealed before the
Supreme Court invoking that the same was a violation of Rules 103
and 108 of the Rules of Court because the said petition did not
implead the local civil registrar.
ISSUE: The issue in this case is the validity of the change of sex
or gender and name of respondent as ruled by the lower court.
HELD: The contention of the Office of the Solicitor General that
the petition is fatally defective because it failed to implead the local
civil registrar as well as all persons who have or claim any interest
therein is not without merit. However, it must be stressed that
private respondent furnished the local civil registrar a copy of the
petition, the order to publish on December 16, 2003 and all
pleadings, orders or processes in the course of the proceedings. In
which case, the Supreme Court ruled that there is substantial
compliance of the provisions of Rules 103 and 108 of the Rules of
Court. Furthermore, the Supreme Court held that the
determination of a person’s sex appearing in his birth certificate is
a legal issue which in this case should be dealt with utmost care in
view of the delicate facts present in this case.
In deciding the case, the Supreme Court brings forth the need
to elaborate the term “intersexuality” which is the condition or let
us say a disorder that respondent is undergoing. INTERSEXUALITY
applies to human beings who cannot be classified as either male or
female. It is the state of a living thing of a gonochoristic species
whose sex chromosomes, genitalia, and/or secondary sex
characteristics are determined to be neither exclusively male nor
female. It is said that an organism with intersex may have biological
characteristics of both male and female sexes. In view of the
foregoing, the highest tribunal of the land consider the
compassionate calls for recognition of the various degrees of
intersex as variations which should not be subject to outright denial.
The current state of Philippine statutes apparently compels
that a person be classified either as a male or as a female, but this
Court is not controlled by mere appearances when nature itself
fundamentally negates such rigid classification. That is, Philippine
courts must render judgment based on law and the evidence
presented. In the instant case, there is no denying that evidence
points that respondent is male. In determining respondent to be a
female, there is no basis for a change in the birth certificate entry
for gender. The Supreme Court held that where the person is
biologically or naturally intersex the determining factor in his
gender classification would be what the individual, like respondent,
having reached the age of majority, with good reason thinks of
his/her sex. Sexual development in cases of intersex persons makes
the gender classification at birth inconclusive. It is at maturity that
the gender of such persons, like respondent, is fixed. The Court will
not consider respondent as having erred in not choosing to undergo
treatment in order to become or remain as a female. Neither will
the Court force respondent to undergo treatment and to take
medication in order to fit the mold of a female, as society commonly
currently knows this gender of the human species. Respondent is
the one who has to live with his intersex anatomy. To him belongs
the human right to the pursuit of happiness and of health. Thus, to
him should belong the primordial choice of what courses of action
to take along the path of his sexual development and maturation.
In the absence of evidence that respondent is an “incompetent”
and in the absence of evidence to show that classifying respondent
as a male will harm other members of society who are equally
entitled to protection under the law, the Supreme Court affirmed
Ma. Meta D. Aboga
IV DVOREF, SY: 2017-2018
as valid and justified the respondent’s position and his personal
judgment of being a male.
RULE 104
Voluntary Dissolution of Corporations
Section 1. Where, by whom and on what showing
application made. — A petition for dissolution of a
corporation shall be filed in the Court of First Instance of the
province where the principal office of a corporation is
situated. The petition shall be signed by a majority of its
board of directors or other officers having the management
of its affairs, verified by its president or secretary or one of
its directors, and shall set forth all claims and demands
against it, and that its dissolution was resolved upon by a
majority of the members, or, if a stock corporation, by the
affirmative vote of the stockholders holding and
representing two-thirds of all shares of stock issued or
subscribed, at a meeting of its members or stockholders
called for that purpose.
Section 2. Order thereupon for filing objections. — If
the petition is sufficient in form and substance, the court by
an order reciting the purpose of the petition, shall fix a date
on or before which objections thereto may be filed by any
person, which date shall not be less that thirty (30) nor more
than sixty (60) days after the entry of the order. Before such
date a copy of the order shall be published at least once a
week for four (4) successive weeks in some newspaper of
general circulation published in the municipality or city
where the principal office of the corporation is situated, or,
if there be no such newspaper, then in some newspaper of
general circulation in the Philippines, and a similar copy shall
be posted for four (4) weeks in three public places in such
municipality or city.
Section 3. Hearing, dissolution, and disposition of
assets. Receiver. — Upon five (5) days notice given after the
date on which the right to file objections as fixed in the order
expired, the court shall proceed to hear the petition and try
any issue made by objections filed; and if no such objection
is sufficient, and the material allegations of the petition are
true, it shall render judgment dissolving the corporation and
directing such disposition of its assets as justice requires, and
may appoint a receiver to collect such assets and pay the
debts of the corporation.
Section 4. What shall constitute record. — The petition,
orders, proof of publication and posting, objections filed,
pg. 42
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
declaration of dissolution, and any evidence taken, shall
constitute the record in the case.
***NO LONGER APPLICABLE.
Proceeding for voluntary dissolution of corporations is
governed by PD 902-A, the revised Securities Acts and the
Corporation Code of the Philippines.
Proceeding for the dissolution of corporations should now be
filed with the Securities and Exchange Commission and is covered
by Title XIV, Secs. 117 to 122 of the Corporation Code of the
Philippines. But by virtue of RA 8799, the jurisdiction for petitions
for voluntary dissolution of Corporations is transferred to the RTC
acting as Commercial Courts.
Even intra-corporate controversies are now under the
jurisdiction of the RTC including those cases enumerated under
Section 5 of the PD 902-A:
1. Devices or schemes employed by or any acts of the board
of directors, business associates, officers/partners
amounting to fraud or misrepresentation detrimental to
the interest of the public;
2. Controversies arising out of intra-corporate or partnership
relations;
3. Controversies in the election or appointments of directors,
trustees, officers, or managers; and
4. Petitions of corporations, partnership, or association to be
declared in the state of suspension of payments.
RULE 105
Judicial Approval of Voluntary Recognition of Minor Natural
Children
Section 1. Venue. — Where judicial approval of a
voluntary recognition of a minor natural child is required,
such child or his parents shall obtain the same by filing a
petition to that effect with the Court of First Instance of the
province in which the child resides. In the City of Manila, the
petition shall be filed in the Juvenile and Domestic Relations
Court.
Section 2. Contents of petition. — The petition for
judicial approval of a voluntary recognition of a minor natural
child shall contain the following allegations:
(a) The jurisdictional facts;
(b) The names and residences of the parents who
acknowledged the child, or of either of them, and their
compulsory heirs, and the person or persons with whom the
child lives;
(c) The fact that the recognition made by the parent or
parents took place in a statement before a court of record or
in an authentic writing, copy of the statement or writing
being attached to the petition.
Section 3. Order for hearing. — Upon the filing of the
petition, the court, by an order reciting the purpose of the
same, shall fix the date and place for the hearing thereof,
which date shall not be more than six (6) months after the
entry of the order, and shall, moreover, cause a copy of the
order to be served personally or by mail upon the interested
parties, and published once a week for three (3) consecutive
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weeks, in a newspaper or newspaper of general circulation
in the province.
Section 4. Opposition. — Any interested party must,
within fifteen (15) days from the service, or from the last
date of publication, of the order referred to in the next
preceding section, file his opposition to the petition, stating
the grounds or reasons therefor.
Section 5. Judgment. — If, from the evidence presented
during the hearing, the court is satisfied that the recognition
of the minor natural child was willingly and voluntarily made
by he parent or parents concerned, and that the recognition
is for the best interest of the child, it shall render judgment
granting judicial approval of such recognition.
Section 6. Service of judgment upon civil registrar. — A
copy of the judgment rendered in accordance with the
preceding section shall be served upon the civil registrar
whose duty it shall be to enter the same in the register.
NOTE: There is no more provision for acknowledged natural
children under the Family Code. Under the Family Code, there are
only two classification of children – legitimate and illegitimate.
Voluntary recognition is a means of proving filiation
particularly for illegitimate children. The significance of the
voluntary recognition is when a mother would like to file for support
from the father of the illegitimate child, she must first prove filiation
otherwise the support will not be granted.
The matter of filiation of illegitimate children and the proof
thereof is governed by Arts. 172 and 173, in relation to Article 175
of the Family Code:
Article 172. The filiation of legitimate children is
established by any of the following:
(1) The record of birth appearing in the civil register
or a final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and signed
by the parent concerned.
In the absence of the foregoing evidence, the
legitimate filiation shall be proved by:
(1) The open and continuous possession of the status
of a legitimate child; or
(2) Any other means allowed by the Rules of Court and
special laws.
Article 173. The action to claim legitimacy may be
brought by the child during his or her lifetime and shall be
transmitted to the heirs should the child die during
minority or in a state of insanity. In these cases, the heirs
shall have a period of five years within which to institute
the action.
Article 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same
evidence as legitimate children.
The action must be brought within the same period
specified in Article 173, except when the action is based on
the second paragraph of Article 172, in which case the
pg. 43
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
action may be brought during the lifetime of the alleged
parent.(289a)
NOTE: The action for Voluntary Recognition survives the death
of the either parties except if the action for recognition is anchored
on the second paragraph Article 172 of the Family Code which must
be brought during the lifetime of the alleged father.
Venue
The action must be filed in the Family court or in absence of
Family Courts, it must be filed in the RTC in the place where the child
resides.
Legitimation
A child born out of wedlock becomes automatically legitimated
upon marriage of the parents, provided that the only
disqualification of the parents is that they are still minors at the time
the child is born, by virtue of RA 9858. Therefore legitimation, being
automatic, there is no need for an action to be filed in court.
RA 9858 repealed Article 177 of the Family Code.
RULE 106
Constitution of Family Home
NOTE: The Rule for the Constitution of family home has already
been repealed by the Family code, there is no need to constitute the
family home.
Family Home. The place where the family actually resides is
automatically considered as a family home. It is the dwelling house
where the husband and wife, or an unmarried head of a family
reside, including the land on which it is situated.
GR: The Family home shall be exempt from execution, forced
sale or attachment.
EXCEPTIONS:
1. For nonpayment of taxes;
2. For debts incurred prior to the constitution of the family
home;
3. For debts secured by mortgages on the premises before or
after such constitution; and
4. For debts due to laborers, mechanics, architects, builders,
materialmen and other who have rendered service or
furnished material for the construction of the building.
RULE 107
Absentees
Section 1. Appointment of representative. — When a
person disappears from his domicile, his whereabouts being
unknown, and without having left an agent to administer his
property, or the power conferred upon the agent has
expired, any interested party, relative or friend may petition
the Court of First Instance of the place where the absentee
resided before his dis-appearance, for the appointment of a
person to represent him provisionally in all that may be
necessary. In the City of Manila, the petition shall be filed in
the Juvenile and Domestic Relations Court.
Section 2. Declaration of absence; who may petition.
— After the lapse of two (2) years from his disappearance
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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.
Section 3. Contents of petition. — The petition for the
appointment of a representative, or for the declaration of
absence and the appointment of a trustee or an
administrator, must show the following:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs
instituted in the will, copy of which shall be presented, and
of the relatives who would succeed by the law of intestacy;
(c) The names and residences of creditors and others
who may have any adverse interest over the property of the
absentee;
(d) The probable value, location and character of the
property belonging to the absentee.
Section 4. Time of hearing; notice and publication
thereof. — When a petition for the appointment of a
representative, or for the declaration of absence and the
appointment of a trustee or administrator, is filed, the court
shall fix a date and place for the hearing thereof where all
concerned may appear to contest the petition.
Copies of the notice of the time and place fixed for the
hearing shall be served upon the known heirs, legatees,
devisees, creditors and other interested persons, at least ten
(10) days before the day of the hearing, and shall be
published once a week for three (3) consecutive weeks prior
to the time designated for the hearing, in a newspaper of
general circulation in the province or city where the
absentee resides, as the court shall deem best.
Section 5. Opposition. — Anyone appearing to contest
the petition shall state in writing his grounds therefor, and
serve a copy thereof on the petitioner and other interested
parties on or before the date designated for the hearing.
Section 6. Proof at hearing; order. — At the hearing,
compliance with the provisions of section 4 of this rule must
first be shown. Upon satisfactory proof of the allegations in
the petition, the court shall issue an order granting the same
and appointing the representative, trustee or administrator
for the absentee. The judge shall take the necessary
measures to safeguard the rights and interests of the
absentee and shall specify the powers, obligations and
remuneration of his representative, trustee or administrator,
regulating them by the rules concerning guardians.
In case of declaration of absence, the same shall not
take effect until six (6) months after its publication in a
newspaper of general circulation designated by the court
and in the Official Gazette.
pg. 44
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
Section 7. Who may be appointed. — In the
appointment of a representative, the spouse present shall be
preferred when there is no legal separation. If the absentee
left no spouse, or if the spouse present is a minor or
otherwise incompetent, any competent person may be
appointed by the court.
In case of declaration of absence, the trustee or
administrator of the absentee's property shall be appointed
in accordance with the preceding paragraph.
Section 8. Termination of administration. — The
trusteeship or administration of the property of the
absentee shall cease upon order of the court in any of the
following cases:
(a) When the absentee appears personally or by means
of an agent;
(b) When the death of the absentee is proved and his
testate or intestate heirs appear;
(c) When a third person appears, showing by a proper
document that he has acquired the absentee's property by
purchase or other title.
In these cases the trustee or administrator shall cease
in the performance of his office, and the property shall be
placed at the disposal of whose may have a right thereto.
NOTE: This is more Civil in nature, in connection with the filing
of presumptive death. Take note that if you want to file an action to
declare an absentee spouse presumptively dead, you must allege in
the petition whether the action is for remarriage or for opening of
his succession or both, otherwise the petition will be denied.
For purposes of remarriage, the absent spouse must have been
missing for 4 consecutive years, or 2 consecutive years if the
disappearance occurred where there is danger of death.
The absentee shall not be considered dead for the purpose of
opening his succession till after an absence of 10 years.
When you file an action for the declaration of absentee or
presumptive death you can pray for the appointment of trustee or
administrator to administer the property while the petition is
pending. (According to JS, this is only applicable if the petition is
filed for purposes of opening the succession of the presumptively
dead spouse).
A Petition for declaration of presumptive death is a summary
proceeding and is NOT appealable thus the remedy of the SolGen
or the aggrieved party is through a Petition for Certiorari under Rule
65, on the ground of grave abuse of discretion amounting to excess
or lack of jurisdiction.
The petition is summary because the presumptively dead
spouse, in case of reappearance, will only have to execute an
affidavit of reappearance and have it registered before the Civil
Registry and thereafter, upon recording of the affidavit in the Civil
Register, the subsequent marriage of the present spouse shall be
automatically terminated.
TAKE NOTE: There must be a court order declaring the
absentee spouse presumptively dead. In the absence of this court
order and the present spouse contracts a subsequent marriage he
can be criminally held for bigamy.
RULE 108
Cancellation or Correction Of Entries In The Civil Registry
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Section 1. Who may file petition. — Any person
interested in any act, event, order or decree concerning the
civil status of persons which has been recorded in the civil
register, may file a verified petition for the cancellation or
correction of any entry relating thereto, with the Court of
First Instance of the province where the corresponding civil
registry is located.
Section 2. Entries subject to cancellation or correction.
— Upon good and valid grounds, the following entries in the
civil register may be cancelled or corrected: (a) births: (b)
marriage; (c) deaths; (d) legal separations; (e) judgments of
annulments of marriage; (f) judgments declaring marriages
void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k)
election, loss or recovery of citizenship; (l) civil interdiction;
(m) judicial determination of filiation; (n) voluntary
emancipation of a minor; and (o) changes of name.
Section 3. Parties. — When cancellation or correction
of an entry in the civil register is sought, the civil registrar and
all persons who have or claim any interest which would be
affected thereby shall be made parties to the proceeding.
Section 4. Notice and publication. — Upon the filing of
the petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause reasonable
notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published
once a week for three (3) consecutive weeks in a newspaper
of general circulation in the province.
Section 5. Opposition. — The civil registrar and any
person having or claiming any interest under the entry
whose cancellation or correction is sought may, within
fifteen (15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition thereto.
Section 6. Expediting proceedings. — The court in
which the proceeding is brought may make orders expediting
the proceedings, and may also grant preliminary injunction
for the preservation of the rights of the parties pending such
proceedings.
Section 7. Order. — After hearing, the court may either
dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a
certified copy of the judgment shall be served upon the civil
registrar concerned who shall annotated the same in his
record.
NOTE: For Cancellation and Correction of entries in the Civil
Registry, the venue is in the place where the birth certificate is
registered and not where the petitioner resides just like a petition
for judicial declaration of a valid divorce decree obtained abroad
which must be filed in the place where the marriage is registered (in
the case of Fujiki).
When you file a petition under this provision the parties must
be named properly. Thus the petition must be titled “Petition for
Correction of Entries in the birth certificate of Juan Dela Cruz, Juan
Dela Cruz, petitioner vs. The Civil Registrar or any person who may
have claim or interest”.
pg. 45
Outline based on the Lectures of Judge Tarcelo Sabarre,Jr.
With notes from Remedial Law Compendium by Regalado
The following may be cancelled of corrected:
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;
14. voluntary emancipation of a minor; and
15. changes of name.
The petition under Rule 108 is not a summary proceedings, this
is an adversarial proceedings. It was ruled by the SC in the case of
Republic vs. Valencia that even substantial errors in the civil registry
may be corrected and the true facts established provided that the
parties aggrieved by the error avail themselves of the appropriate
adversary proceedings.
That is why all the persons who might be affected as a
consequence for the filing of this petition should always be joined
as respondents so that the latter may be given an opportunity to
contest the petition.
Proceedings for the cancellation and correction of entries in the
Civil Registry:
1. Summary – where the correction sought to be made is mere
clerical error now governed by RA 9048;
2. Adversarial – where the rectification effects civil status,
citizenship or nationality of a party or any other substantial
change.
NOTE: It was held in Republic vs. Cagandahan that RA 9048
removed from the ambit of RA Rule 108 correction of clerical or
typographical errors and that Rule 108 applies only to substantial
changes or correction of entries in the Civil Register.
The reason why non-clerical mistakes cannot be corrected
under the Summary proceeding lies on the fact that the books
making up the Civil Register and all documents relating thereto shall
be considered public documents and shall be prima facie evidence
of the facts therein contained.
RULE 109
Appeals in Special Proceedings
Section 1. Orders or judgments from which appeals
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
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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.
Section 2. Advance distribution in special proceedings.
— Notwithstanding a pending controversy or appeal in
proceedings to settle the estate of a decedent, the court
may, in its discretion and upon such terms as it may deem
proper and just, permit that such part of the estate may not
be affected by the controversy or appeal be distributed
among the heirs or legatees, upon compliance with the
conditions set forth in Rule 90 of this rules.
NOTE: Section 1 of Rule 109 enumerates judgments which
may be appealed. Remember the appointment of a special
administrator is not appealable.
In case when multiple appeal is allowed, the appeal period is
30 days. Aside from filing the notice of appeal you must also file
the corresponding record on appeal.
Orders which may be appealed
1. An order appointing an administrator but not a special
administrator
2. Ruling of a court determining the lawful heirs who may
participate in the settlement of the estate;
3. Orders or claims against the estate, inventories and sale of
the property of the decedent.
Orders which are NOT appealable
1. Order appointing special administrator;
2. Order for administrator to recover property of the estate or
order directing administrator to take action to recover
amount due to the estate;
3. Order to include or exclude property in the inventory.
pg. 46