Remedial Law Review 2015-2016 SPECIAL PROCEEDINGS

SPECIAL PROCEEDINGS (Crash Review)
IMPORTANT SUBSTANTIVE PRINCIPLES relating to Special
Proceedings
Difference between a Ordinary Civil Action and a Special
Proceeding
There are certain requirements on the rules on civil pro and
evidence that are also apply to spec pro
Like requirement of certificate of non-forum shopping on
initiatory pleadings, are they required in spec pro as well?
– YES

Ordinary Civil Action
You are seeking to enforce a
right
Binds only the parties to the
action (IN PERSONAM)
Special Proceeding
You are seeking for a
declaration of a Status (on
legitimacy), a right (to
inheritance) or a fact (on
absentees and incapacity for
guardianship)
Binds the whole world. (IN
REM)
The public is informed of the
petition by publishing the
order for hearing on the
petition so that interested
parties can intervene during
the hearing
Demurrer to evidence – motion to dismiss due to the
insufficiency of evidence.
This can also be applied to spec pro.
How about on condition precedents, when usually some of
the petitions that include family members, is it required that
there should be first a conference or an effort to settle the
differences like in a settlement of the estate? Should there be
an assertion that there must be a prior effort of settling the
controversy of the family? –NO! It is not required or
jurisdictional. Contrary to a civil case where you have to state
that otherwise, that would be a basis for lack of cause of
action.
Different petitions that may be filed for a Special Proceeding
1. Settlement of the estate

2. Escheat
Can you join an ordinary action and a special proceeding?
3. Adoption
Like an ordinary action for recovery of property and at the
same time you ask that you be considered as an heir to an 4. Habeas Corpus
intestate estate proceeding? – NO! There cannot be a joinder
of causes of action of an ordinary complaint and a spec pro. 5. Change of name

6. Correction of Entries
What about a special civil action and a Spec Pro? – NO!
7. Confinement of an insane person

8. Guardianship
Multiple petition of Spec Pro in one petition?
9. Declaration of absentees
Like, Correction of entries and at the same time for Change of
name in one petition?

Declaration of Nullity of Marriage, is it an ordinary civil action

Like Writ of Habeas Corpus and at the same time custody of a or a Spec Pro? Yes! It should not be a complaint but a
minor? – YES for both petition. (Declaration of a Status or a Fact)

Are the rules on procedures in an ordinary action applicable SETTLEMENT OF ESTATE

to spec pro? –YES if they are not contrary. They serve as
basically suppletory to the rules on spec pro. When a person dies, there must be a settlement of estate.

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Based on the discussion by Judge Estela Alma Singco
Remedial Law Review 2015-2016
MODES/WAYS OF SETTLEMENT:
1. ADJUDICATION OF SOLE HEIR- no will and no debts,
if there is only one heir, file an affidavit in the RD
(Rule 74 Sec 1)
2. EXTRAJUDICIAL SETTLEMENT OF ESTATE – no will
and no debts (public instrument) (Rule 74 Sec 1)
3. SUMMARY SETTLEMENT OF SMALL VALUE –
PETITION, gross value of estate= not more than 10k-
(Rule 74 Sec 2)
4. PARTITION- (Rule 69)-
5. ADMINISTRATIVE PROCCEDINGS – PETITION, needs
Letter of Administration
6. ESCHEAT – PETITION, no heir, State now claims all
the properties
In adjudication and extrajudicial, there is a need to
publish it in a newspaper of general circulation once a
week in 3 consecutive weeks. This is notice to creditors.
After publication, you go to RD for conveyance and
transfer of title from the deceased to the heirs. The RD
will issue the new titles.
VENUE- (can be a Filipino citizen or foreigner)
Resident of Phil - place where he resides at the time
of the death *check the death certificate
Resident outside- place where he had estate *if
properties located not just in one locality (Cebu and
Manila), then the court where the petition is first
filed acquires jurisdiction to the exclusion of others
JURISDICTION (Check value of the entire estate)
MTC- 300k or less // Metro Manila 400k or less
RTC- more than 300k// Metro Manila more than
400k
*The estate is an artificial being
In THE BAR EXAM, the question is on the RESIDENCY. How is
it defined?
Same concept in Political law. DOMICILE =
RESIDENCE.
1.) Animus revertendi – intention to return to that
place even if by employment/profession, he
lives in other place
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
RULE: BUT in SETTLEMENT of estate, it is more
of ANIMUS MANENDI
2.) Animus manendi -where he actually or
physically staying. INHABITANT = RESIDENCE
Problem: An old man lives in Carcar since childhood but the
children transferred him to CEBU CITY because of his
health. He died in CEBU CITY. Where is the venue?
CEBU CITY the last place where he resided.
Should it be MTC there or MTCC Cebu City, if you go by place
of residence?
ANS: Last place where he stayed. So Cebu City.
BUT what if the contention is that he had no intention to stay
here because he was in Cebu City only for check-
up/hospitalization. So then you go by his intention as to
where he wished to stay.
The term “RESIDES” in Section 1, Rule 73 on Settlement of
Estate of Deceased Persons refers to his ACTUAL residence as
distinguished from legal residence or domicile.
“Resides” should be viewed or understood in its popular
sense, meaning, the personal, actual or physical habitation of
a person, actual residence or place of abode. It signifies
physical presence in a place and actual stay thereat. No
particular length of time of residence is required though;
however, the residence must be MORE THAN TEMPORARY.
(Garcia Fule v. CA, 74 SCRA 189)
One thing is for sure, if it was filed in Carcar City and nobody
complains about it, Carcar still has jurisdiction because it’s
just a question of VENUE, which is WAIVABLE. If the parties
do not complain then it is deemed waived.
Partition:
In partition, they would execute a deed, dividing among
themselves the properties and usually this is done when
there are no debts or obligations.
Requirements to file a Petition for Settlement:
As much as possible, it’s only for good reason that you go to
court in order to have the properties settled. So if they can
settle among themselves then that is best because it would
be more expeditious.
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Remedial Law Review 2015-2016
What must you first prove when you file the petition for
settlement? Common to both judicial and extrajudicial
settlement of the estate.
 Establish the DEATH (either Natural or Presumptive).
No estate if the person is still alive and thus nothing
to settle.
 If NATURAL – present death certificate, not much of a
problem.
 If PRESUMPTIVE – petition for declaration of absence or
presumptive death
How long do you wait to declare him as presumptively dead?
For purposes of opening the succession you follow the
following periods but DISTRIBUTION of the estate can only be
done AFTER the indicated period
 10 years – ordinary circumstances of disappearance
 5 years – if the person was already 75 when he was
missing
 4 years – if under EXTRAORDINARY Circumstances
Instances of extraordinary circumstances of presumptive
death: (Article 391 NCC)
(1) A person on board a vessel lost during a sea voyage,
or an aeroplane which is missing, who has not been
heard of for four years since the loss of the vessel or
aeroplane;
(2) A person in the armed forces who has taken part in
war, and has been missing for four years;
(3) A person who has been in danger of death under
other circumstances and his existence has not been
known for four years.
TAKE NOTE: There is NO FINALITY in cases of presumptive
death. This is because the person can always reappear.
What happens to the estate that has already been distributed
if such person declared presumptively dead reappears?
ANS: The dispositions already made are valid but the
remaining properties are to be returned to him.
Article 392 NCC
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
If the absentee appears, or without appearing his existence is
proved, he shall recover his property in the condition in which
it may be found, and the price of any property that may have
been alienated or the property acquired therewith; but he
cannot claim either fruits or rents.
Summary Settlement of Estate (Rule 74)
2 ways of summary settlement of estate
1. Extraordinary – by the agreement of the heirs under
Section 1, Rule 74
2. Judicial – where gross value is P10,000.00 or less
Requirements
1. Prove that there is no will
2. Prove that the deceased left no debts
3. Execution of the public instrument (Affidavit or Deed of
Extrajudicial Settlement)
Register of Deeds may require for purposes of
conveyance the putting up of a bond for personal
properties because personal properties can be easily
disposed of.
So that if someone will make a claim in the future
like a creditor, at least there is the bond that could
answer for that claim.
Why no bond requirement for real properties?
ANS: You can just annotate the claim on the title.
4. All the heirs must be of legal age or if minor, they must
be represented by their judicial or legal representative
who will sign on their behalf
5. Publication as it is an in rem proceeding in order to
inform the public of the settlement of the estate
o Where partition is possible either in or out of the court
the estate should not be burdened with an
administration proceeding because it is very difficult. It
would best if they can settle it among themselves
without going to judicial administration.
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o Notice to creditors published in a newspaper of general
circulation, what does it mean? Can it be in a tabloid as it
is cheap?
ANS: Yes, as long as it published for the dissemination of
and in a bona fide subscription list of paying subscribers
and it is published at regular intervals. The newspaper
need not be the largest circulation, so long as it is of
general circulation
o If you go into judicial administration, when do you do
that? Is there a prescriptive period in which to settle the
estate?
ANS: It is IMPRESCRIPTIBLE. But if you are a creditor, you
should file your claim against the estate within 2 years.
The creditor then may file for a petition for settlement of
the estate at least within 2 years from the date of death
of the decedent.
Filing of Petition for Administration
Persons who can file on the letters of administration
1. Creditors.
2. Heirs.
3. If there’s a last will and testament, the legatee or the
devisee or any person who may be interested in the
settlement of the estate.
Settlement of the Estate with Last Will and Testament
 No settlement of the estate in accordance with the last
will and testament if it has not yet been validated,
allowed or probated yet.
 Transfers can only be done after the probate of the last
will and testament because if the last will and
testament is found to be invalid, the proceedings
would be converted into an intestate proceeding.
 If valid, then you go the will in terms of the disposition
of the estate of the deceased. That’s first and foremost
priority.
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
 In fact, even if you started with an intestate
proceeding if later during the course of the
proceedings, a will has been discovered it has to be
stopped and instead first have the will probated
because if the will is found to be valid, then it will be
followed. And the disposition of the properties left by
the deceased should be done in accordance with the
last will and testament. So then that’s how important
the probate of a last will and testament.
Last Will and Testament: Notarial or Holographic
TN: Probate is an act of proving before a competent court the
due execution of a will by a person possessed of
testamentary capacity as well as approval by said court.
 Even if there may be only one heir and he has been
instituted in the will. Do you still have to probate or
have the will probated? It has to be probated.
 Now, in a probate you present before a judicial
tribunal alleged to be the last will and testament of a
certain deceased person and prove its authenticity
and validity so it may obtain judicial recognition and
capable of registration in carrying out its provisions
as they are in accordance with the law.
Extrinsic Validity
Basically the probate of the will its more on the extrinsic
validity rather than on the intrinsic. When you speak of
extrinsic validity, what do you need to prove? Let me go first
in holographic will.
How to Validate a Holographic Will
That it was written by the hand of the deceased. Then all that
you need to prove there is that the handwriting is that of the
deceased in other words it’s authentic. So what proof do you
need? Evidence? It could be a person who knew or a witness
of a holographic will who is familiar with the handwriting or
the signature of the deceased.
How to Validate a Notarial Will
If notarial, what are the things you need to establish? First,
the competence, was he sane at the time because if he was
not in his right mind, he was just being coerced or induced
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into signing it in other words it is vitiated, then the will
cannot be probated.
As to Form, Attestation Clause
In the attestation clause what do you need?
1. Each and every page must be signed, it has to be
stated in the attestation clause.
2. If it was written in English that it was understood by
the testator.
3. There was a statement that it was voluntarily and
freely executed.
4. It was signed in the presence of each other as
witnesses and in the presence also of the testator
before the notary public.
5. The holographic will has to be dated also as well as
the notarial will.
Characteristics of a Probate of a Last Will and Testament
1. It’s an in rem. It binds the whole world. So even you
are not notified of the probate of the will,
supposedly that binds you because you have been
notified through the publication of the what? What
was published? Not the will neither the petition for
probate. It is the order setting the petition for initial
hearing. You only publish the notice that this will be
for purposes of establishing the jurisdictional facts.
That the court has jurisdiction to hear the case on
such a date and place.
2. It is mandatory. It should be probated otherwise
there cannot be any transfer of title without the will
first being probated. As I was saying earlier, that
even if there is only one heir, still you need to
probate the last will and testament.
3. It is imprescriptible. So you can have the will
probated anytime. When you file it only after a
hundred years, it has nonetheless been probated
because it is imprescriptible. What is important is
that you dispose of it according to the will.
Estoppel not Applicable in the Probate of the Last Will and
Testament
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
Would estoppel now apply?
Example: You already received the benefits and you cannot
anymore question on the fact that, which was the basis on
receiving the benefits. Would that apply in probate of last will
and testament? Like on the matter of competence where you
did not question from the beginning and then later there’s
the disposition that you are objecting to. Now you question
the mental capacity of the deceased when he executed the
will when in the first place you never raised that issue.
TN: Estoppel does not apply in the probate of the last will and
testament. So let’s say, in the beginning, you have to prove
that he was competent at the time when he executed the last
will and testament and then later, there’s a disposition of
some properties that you are against it. Especially when the
property is already in your possession. However, in the last
will and testament, it was given to someone else. Can you
then question the competence of the testator? Can you then
be also stopped from doing so by invoking the principle of
estoppel? No. this will not apply.
Intrinsic Validity
We were saying earlier that in the probate of the last will and
testament, what you need to prove, that the will is valid
based only on the extrinsic requirements of a valid will and
testament. Now when can you question the intrinsic validity
of the will? Should it be taken during the time of the probate?
No. The intrinsic validity of the will normally comes after the
court has declared that the will has been duly authenticated.
Example: You were disinherited, you question the validity of
the disinheritance or you are a compulsory heir however you
were omitted, so in a preterition, can you question that
during the probate? No. You can only do that during the
matter of going into the distribution already in accordance
with the last will and testament. So now you can question on
the intrinsic validity.
This is on the Extrajudicial Settlement of Estate (please refer
to the page 3 of the photocopy of diagrams).
 You start with the death, natural or presumptive.
Take note, this applies to (WHO portion) No Wills,
No Debts, left real and/or personal properties and
left heirs.
 After, the heirs now will execute a public instrument
like a Deed of Extrajudicial Settlement of Estate and
there is now a publication of notice to the creditors.
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 If there is no agreement or deed, then you may
have the partition of the properties in accordance
with Rule 69, on Judicial Partition. This is filed with
the proper court that has jurisdiction.
 After publication or judgment, we now go to the
Registry of Deeds for registration.
Some illustrations on escheat proceedings:
1. If there are no heirs, then there will be escheat
proceedings with the MTC or RTC depending on the
value of the properties. It will be initiated by the
state through the Solicitor General. There will be
an order of publication, once a week for six
consecutive weeks. There will be hearing six
months thereafter and judgment will then be
rendered.
2. For ordinary properties left by someone who is
declared presumptively dead, it will be the LGU
who will initiate the escheat proceedings. Usually
this is done by the fiscal of the locality.
3. Usually, we have escheat proceedings when a
property erroneously registered under the name of
a private individual when that property is
inalienable, or when a property is conveyed to a
foreigner who is not qualified to acquire or register
a property and there is no other person who
initiates to recover it then the state will recover it
through escheat proceedings.
Summary Settlement of the Estates of Small Value (please see
page 4)
 The amount of the estate is P10,000 or less.
 There is always publication then a hearing after.
 There will be notices given to parties interested and
if they have oppositions, they may appear and file it
at the initial hearing.
 Thereafter, judgment will be rendered (refer to
ISSUANCE OF ORDER box). If you have any
oppositions or you lost the case, you can always
appeal.
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
Allowance or Disallowance of the Last Will and Testament
 We have notarial or holographic will.
 The following may file a petition for allowance of
will:
1. Executor;
2. Devisee;
3. Legatee;
4. Any other person interested in the estate;
5. Testator himself during his lifetime;
 When the testator himself files for the probate of his
will, it is a lot easier. Publication is dispensed with.
It is enough that the compulsory heirs have been
notified of the proceedings. If the court finds that
there are deficiencies in the will then the court shall
order the testator to correct them.
 What do we need to state in the petition? We must
state the jurisdictional facts, as follows:
1. Fact of death;
2. Names of all the heirs, their addresses, and
ages;
3. Place of residence of the decedent;
4. Probable value of the estate;
5. Executor;
6. The person who may have the custody of
the last will and testament;
7. Affidavit of Publication and newspaper
clippings of the order of initial hearing;
8. Notices to the heirs made by the court;
 What if not all heirs were notified? Does it affect the
validity of the proceedings? No because there was
publication. They are presumed to have been
notified through the publication.
 Then we go to the initial hearing, proof of notice and
publication, and then you have the presentation of
documentary and testimonial evidence. If there is
an opposition, then the opposition shall also present
his evidence.
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 What are the possible grounds for opposition?
1. That the last will and testament is not valid;
2. Executed under vitiated consent;
 Once granted, a certificate of allowance will be
issued by the Clerk of Court. It will be registered
with the registry of deeds.
 Then there will now be a hearing on the intrinsic
validity of the will. If there are issues, such as,
omissions of compulsory heirs or anything in relation
to the intrinsic validity of the will, then you raise
them at this point. Or when the properties subject
does not really belong to the estate then you make a
claim at this stage.
 There will be now judgment and thereafter,
distribution of the remainder of the estate in
accordance with the will.
 An appeal may be filed, if allowed.
Reprobate of Wills
 A will already probated outside of the Philippines
needs to be reprobated here because the judgment
rendered by such foreign court does not bind the
Philippine courts. It is outside of its jurisdiction
already. It still has to be validated here.
 If executed outside of our country, there is no
prohibition on having it probated here. The court
having jurisdiction of the place where the properties
are located shall have jurisdiction over the probate
proceedings.
 The reason why we have the reprobate proceedings
is because he has left some properties in the
Philippines.
 If you were the petitioner in a reprobate
proceedings, you have to prove, that:
o The fact of death of the testator;
o The will was executed in accordance with
his national law;
o Probated by a court in the country where
he is a resident or domiciled;
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
o Rules of probate in that country and such
rules have been followed;
Allowance of the will proved outside the Philippines:
Secure an authenticated copy of the decision of the foreign
country and file a petition in court, whether in MTC or RTC
depending on the value of the property and its location.
Furnish a copy to all parties interested. The case will be
ordered for initial hearing.
There will be a hearing of evidence to prove that:
1. Execution is in accordance with foreign laws
2. Domicile of the testator is in the foreign country
3. Admitted to probate in a probate court in a foreign
country
4. Law of the foreign country has been followed
The will be an appointment of an ancillary administrator to
manage the properties in the Philippines. The principal
administrator is the person named in the last will and
testament to administer the properties in the foreign
country. The principal administrator cannot manage the
properties in the Philippines because of the non-application
of the laws of the foreign country.
A certificate of allowance will then be issued. If denied, you
can always go on appeal.
Effect: As if originally proved and allowed in the Philippines.
Letters administration will be issued to the ancillary
administrator.
Rule 78, 79 and 80
Administration proceeding:
1. Death of testator
2. Probate of the will court
3. Conduct of a hearing and judgment will be rendered
Appointment of administrator: Special administrator if there
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is no regular administrator so as not to delay the settlement
of the estate.
If there is a named executor or administrator in the last will
and testament, letters administration shall be issued. If the
named executor is not qualified, or refuses to accept or
cannot put up a bond or is incapacitated, then an
administrator will be appointed by the court.
Before the administrator or executor exercises his functions,
he is mandated to put up a bond. For the executor, he may be
allowed not to put up a bond when the will and testament
says so. But even if allowed not to put up a bond in the will
and testament, if there is a risk to his appointment, such as
he is insolvent, the court may require him to put up a bond to
protect the estate. For administrator, putting up a bond is
mandatory.
Qualification for one to apply for letters of administration:
1. Resident of the Philippines
2. At least 18 years of age
3. Not unfit to execute the trust
 Drunkard, improvident, conviction of
offense of moral turpitude
After the will is proved, letters of testamentary is issued to
the executor. There can be more than one executor when the
estate is so large that it has to be managed by experts
especially in liquidation and distribution, or when the heirs do
not trust each other.
 It’s possible that the legitimate children will have an
administrator, while the illegitimate children will
have their own co-administrator. However, as much
as possible, there should be only one administrator,
because:
a) It’s too costly- the estate could be
consumed just paying for fees of the
administrators and their expenses.
b) It will aggravate the situation – a decision
cannot be immediately reached because
they will end up fighting before reaching a
settlement of the estate.
Appointment of Administrator (in order of preference):
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
1. Surviving Spouse – Must be a legitimate spouse,
because she has much interest at stake in the
property.
2. Next of Kin – if there is no spouse. It is also not
necessarily a compulsory heir, if there is none, it can
just be the closest kin to the decedent/testator.
3. Both (spouse & next of kin) – at the discretion of the
court.
4. Anyone recommended either by the surviving
spouse or next of kin.
5. Any interested person
6. Any party or person whom the court may select if
none of the above are qualified.
[Favorite Bar Question: Among the heirs who should be
issued letters of administration]
Case:
st
The decedent got married the first time. Later, the 1
marriage was dissolved upon the death of the 1st wife. He got
married to someone else, and they both became US citizens
and migrated to the US. However they got divorced as well.
rd
He married for a 3 time, and later on died.
nd rd
Both wives (the 2 and 3 ) are now claiming to be
nd
administrators to the estate because according to the 2
wife, divorce is not recognized in the Philippines. As far as
Phillipine law as concerned: “I’m stll the legal wife”.
nd rd
Question: Who is now the proper administrator? 2 wife, 3
st
wife, or son of the 1 marriage? Between the 3, who has
more interest to be protected in so far as the estate of the
decedent is concerned?
Answer: Use order of preference. If you look at the Son, he is
the closest kin. But if the first wife died, he can only get as
much as the share of the father, as his heir. As regards to the
nd
2 wife, it is dissolved upon divorce, their conjugal
partnership is gone and she is no longer related him. Even if
divorce isn’t recognized in the Phil, we do recognize divorce
by foreigners.
rd
Among the 3, the one who has rights over the estate is the 3
rd
wife. In the order of priority, it should be the 3 wife.
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Who are the “any interested persons”?
-Principal Creditors
-they might have more at stake in the property because
before distribution there should be payment of debts and
obligations.
-So if he is the principal creditor, then he may ask also for
administration, because there may not be any property left to
be distributed among the surviving spouse or any of the heirs
of the testator/decedent.
Rule 78
 You now file the petition, and the order to set case for
initial hearing will be issued.
 Then there will be publication of the order 3 consecutive
weeks, in a newspaper of general circulation.
 You may file your opposition under Rule 79. It could be
any interested person on the following grounds:
1. Incompetence of the proposed administrator
2. Oppositor has better right
3. Another better person is proposed, or the
oppositor himself may propose himself to be the
alternative administrator if the petitioner is not
qualified.
 After initial hearing, there will be reception of evidence.
 Thereafter a decision will be rendered.
o If the petition is granted, the letters of
administration is ordered; issued to one proven
to be competent, qualified, willing and able to
post bond, and who accepts the appointment.
o If petition is denied, the aggrieved party always
has the remedy of appeal.
When do you make an appointment of a special
administrator?
1. When there is delay grant of the petition for letters
of administration
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
- in the meantime there may be some properties
that are the subject of foreclosure, or there
maybe pending cases for recovery of property,
or pending cases against the decedent before he
died, that need to be represented by an
administrator
- This is non-appealable.
2. There is an appeal for allowance or disallowance of
the will
- so as to protect the estate then you may make
an appointment of a special admin
3. The executor or administrator is a claimant against
the estate
- -incidentally the executor is also a creditor. So
he can only successfully assert his claim against
the estate if he ceases to function as
administrator or else there will be a conflict of
interest.
4. Any other cause arising from probate of will then a
special admin will be appointed.
Assuming that there is an administrator or executor issued
with the letters:
1. They are now required to make an inventory, accounting,
and collation.
 Inventory for property of the decedent
- Should be done by the administrator right after
he files his bond, before he assumes his
functions. This is so the Court will be properly
apprised of the exact status of the estate of the
decedent
- to be able to know the probable value of the
property if it is enough or sufficient to pay off
the obligations. Or should it be considered as
insolvent.
 Accounting: how much are the assets, and liabilities.
 Collation: If there had been advance distribution of
the estate of the decedent during his lifetime, this
will be collated later for purposes of determining
how much exactly an heir is entitled to estate.
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2. Thereafter, there will be payment of debts first and
foremost (under Rule 88). Then distribution and partition
once that is done (Rule 90).
Inventory vs Accounting
Inventory is the list of all personal and real estate of the
decedent, which may have come to the possession or even
knowledge of the executor/administrator. These properties
may not even be in the possession of the executor, but it has
come to the knowledge of the executor it belonged to the
estate of the decedent.
While in Accounting, it refers to personal and real properties
which have come to the possession of the executor or
administrator. It pertains to only those that are in the
possession of the administrator.
 The probative value of the ownership over the
property that is included in the list in the inventory is
only prima facie evidence.
 For purposes of determining whether a certain
property should or should not be included in the
inventory, the probate court may pass upon the title
thereto, but such determination is not conclusive
and is subject to the final decision in a separate
action to be instituted between the parties.
 Although, generally, a probate court may not decide
a question of title or ownership, yet if the interested
parties are all heirs, or the question is one with
collation or advancement, or the parties consent to
the assumption of the jurisdiction by the probate
court and the rights of third parties are not
impaired, then the probate court is competent to
decide the question of ownership.
 In fact if third parties are not notified, it is not
conclusive upon them. It cannot be binding to them
as they did not participate in the said proceeding.
There is no case of res judicata in this case
considering that the probate court has no
jurisdiction to determine with finality the ownership
of title of the property.
 Things that you should not include in the inventory:
(as they are not considered assets)
-wearing apparel of the surviving spouse
and minor children
-marital bed and bedding
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
-such provisions and other articles
necessary for subsistence of the family of
the deceased (Sec. 2, Rule 83)
 Allowance to widow and minor or incapacitated
children of the deceased person (sec. 3, Rule 83)
- The widow should be legitimate
- Even if the child is beyond the age of
majority, he/she is entitled to support
if it is for schooling or training for some
profession, trade or vocation.
- Grandchildren that have been living
with grandparents are not entitled to
allowance.
Rule 84
 Basically, the extent of the role of the administrator
to the share of the decedent who is partner to a
partnership:
- He has no right to the administration of the
partnership
- He shall at all times have access to, and
may examine and take copies of books and
papers relating to the business
- Refer to article 1805 of the civil code.
 When the administrator acts of dominion over the
properties of the decedent, any disposition must be
with the approval of the court. Example: selling
property of the decedent or leasing it for a long
period of time, or mortgaging the property.
 Otherwise, if it is an act of administration, he can
do so without the said approval of the court.
 It must be understood that supposedly the
properties to be administered are in custodia legis
although under the control and administration of
the administrator. He merely acts as an officer of
the court. So the properties stay in the hands of the
court until the affairs of the deceased are
adjudicated and liquidated. Only the net of the
properties (balance) are turned over to the persons
entitled to it after hearing.
Rule 84
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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.
Acts of Disposition that require the approval of the court:
1. Payment of debts
2. Borrowing money for payment of debts
3. Buying properties
Acts of ownership that require approval of the court:
4. Investment of part of estate
5. Lease for more than 6 years that must be registered
6. Sale of estate
7. Continuing of the business of the deceased.
Administrator is just agent of the court. Cannot enter into any
transaction involving the estate without prior approval of the
court. He shall be liable to the whole estate and liable for the
loss of properties which are considered part of the estate.
Rule 85
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 than its nominal value, he is entitled to charge in his
account only the amount he actually paid on the settlement.
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
Profits of the estate goes to the estate, not to the pockets of
the administrator. Any increase. Suffered loss, decrease of
any part of the estate should be borne by the estate. Business
of the deceased cannot be continued unless there is prior
approval of the court.
Properties of the estate under administration cannot be
acquired by the administrator either by purchase or
foreclosure or through the mediation of another as there will
be conflict of interest. It is prohibited.
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.
A long as person pays for the rents and they are accounted
for, he can be appointed administrator even if he is occupying
one of the properties of the deceased.
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
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estate any professional fees for legal
services rendered by him.
When the deceased by will makes some
other provision for the compensation of his
executor, that provision shall be a full
satisfaction for his services unless by a
written instrument filed in the court he
renounces all claim to the compensation
provided by the will.
ADMINISTRATION EXPENSES – expenses incurred for the
management of the estate for protecting it against
destruction or deterioration and possibly for the productivity
of the fruits. There are expenses entailed for the preservation
and production of the estate and its management for
purposes of liquidation, payment of debts, distribution of the
residue among the persons entitled thereto.
Attorney’s Fees – Not necessary for the part of the
administration expenses, therefore should not be chargeable
to the estate. E.g. lawyer working for the administrator
should not file a claim directly against the estate but should
be against the administrator. Later, the administrator shall
ask reimbursement from the estate.
The rule that for attorney’s fees for services rendered to an
administrator to be chargeable to the estate are rendered to
assist him in the execution of his trust. The attorney’s fees
cannot be held directly against the estate, such fees are
allowed as against the administrator and not the estate. The
liability for payment rests on the administrator. If the fees are
reasonable and beneficial to the estate then the
administrator shall be entitled to reimbursement.
The fixing of the attorney’s fees shall be made by the probate
court in the same proceedings where the attorney’s services
were rendered where it is chargeable to the personal account
of the administrator. Administrator still has to prove that the
services of attorney were necessary in the management of
the estate. There must be a request to pay by the lawyer to
the administrator. If the latter does not pay, he shall be sued
in his personal capacities and then the award therein shall be
charged to his personal account for the payment for the
expenses of the administration. Hence it is filed (petition) in
the probate (testate or intestate) proceedings asking the
court, with notice to the heirs and other interested persons,
for the payment of expenses of administration.
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
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
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.
Upon assumption as administrator, the latter must submit list
of properties of the estate (make an inventory).
Has one year from appointment as administrator or executor
to make an accounting which is mandatory which may be a
ground for removal as administrator or executor upon failure
to do so.
Extension may be granted by the court for valid causes,
otherwise, delay of submission may also be a ground for non-
payment of compensation as administrator.
It is eventually the court that would fix the compensation
taking into account the services of the administrator or
executor which were rendered.
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
Hearing shall be required upon submission of the accounting
and inventory for approval of the court because in the
inventory and accounting, it contains a list of properties of
the deceased which may entail obligations that can hold the
estate liable hence need to be settled and claims that may
have been filed against the estate. It is important to
determine them so notice the proper parties may be given for
it may give rise to prescription of such action or claims.
Statute of non-claims in relation to prescription of actions
and claims - Claims against the estate should be made not
earlier than 6 months from first publication of notice to the
creditors but not later than 12 months from the first
publication of the notice. So even if the action or claim has
not prescribed yet, if you do not file a claim within such
period, the claims shall be forever barred from making a
claim against the estate.
All heirs are interested persons hence must be furnished
copies, notice is mandatory.
Notice is by registered mail, posting or publication as may be
directed by the court.
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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.
Purpose of the administrator’s/executor’s bond - to answer
for his failure or neglect in the administration of the estate or
caused injury or prejudiced the estate of the decedent.
Amount of the bond is left to the sound discretion of the
court, taking into consideration of the risks, qualifications of
the administrator and the value of the estate of the
decedent.
Surety need not be notified should the bond be made
answerable for the liabilities of the administrator. That it is
already part of the obligation they assumed. May INTERVENE.
Rule 86
Claims against the estate may be:
1. Money claims which are due, not due or contingent.
(e.g. collection of sum of money pending upon death
of decedent)
Time to file shall be:
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. (STATUTE OF NON-
CLAIMS)
Against the decedent then it has to be charged against the
estate, if it may they survive by substitution, or the
administrator shall substitute the decedent in the settlement
of the estate. For there to be considered as claim against the
estate, it has to filed within the period provided in statute of
non-claims, that when it was not filed, even if there is a
favorable judgment there may not be a settlement of the
claim. Again, these are money claims that arise from a
contract that is due, not due or a contingent claim.
What may be charged?
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
Funeral expenses may be charged against the estate
Medical expenses in the last sickness of the decedent, the
cause of his death
Judgment for money arising from negligence or tort charged
against the estate.
Not included:
First death anniversary not included.
What is the case filed if it is for malicious prosecution for
damages when judgment is rendered against the decedent, it
is not included. This is not money claims.
The claim should be done in the period in the statute of non-
claims and this is mandatory. The court acquires no
jurisdiction, even if it is stated in the will, it has to be filed
within the period in court, otherwise, it is barred.
Ex. In the will, Pedro said “Pay to Juan”, but if Juan will not
file the money claim in court within the non-claim period, it is
barred. The court cannot acquire jurisdiction.
Difference between statute of limitations from statute of
non-claims.
1. Non claims supersedes limitations. Period of non-
claim 6 to 12 months in clerk of court vs. limitations
10 years written. However, take note that before
you can claim, it should be both within the statute of
non-claim and statute of limitations.
The death of the debtor does not suspend the
statute of limitations.
 The period applies to judicial settlement. It does
not apply to extrajudicial settlement.
RULE 87 Actions By and Against Executors and
Administrators
Section 2. Executor or administrator may bring or defend
actions which survive. — For the recovery or protection of the
property or rights of the deceased, an executor or
administrator may bring or defend, in the right of deceased,
actions for causes which survive.
This are actions that survive in which case, the administrators
shall assume the obligations of the decedent.
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On Embezzlement of properties, there is This double the
value of properties. (Sec. 8)
RULE 88 Payment of the Debts of the Estate
After the inventory and account, there is order in payment.
Priority tax obligation of the government. Then the creditor in
the preference and concurrence of creditors in the civil code.
Property - personal property first, before real properties,
then contributive shares of the heirs if the real properties are
already disposed to them beforehand.
RULE 89 Sales, Mortgages, and Other Encumbrances of
Property of Decedent
Approval of court necessary.
What should be included in the petition?
1. Existence of debts, legacies to be paid
2. Value of the estate
3. Circumstances that sale is necessary or beneficial to the
estate
If approved, then sale in public auction will follow.
Rule 90 Distribution and Partition of the Estate
Distribution will follow if there is a remainder of the estate.
First, according to the will of the testator, or if none, through
intestate.
Court will require the project of partition. An accountant to
render accounting and a surveyor to divide the house and
how it should be distributed.
(Judge tells the story about the cases pending in her sala, the
one about the carabao yoke and the antique sewing
machine… )
Rule 91 - ESCHEATS
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
- when there is no heir, then it would be the STATE
who will finally claim over the property.
GUARDIANSHIP OF MINORS
So you have the General Rule on guardianship
And you also have the Rules issued by the SC
If subject of the guardianship rights is a minor, usually if there
is a family court in that RTC, it would be field with the RTC
family court. In Mandaue, there’s no family court, so all the
courts there handle cases involving guardianship over the
minor.
How about the parents, can they just be automatically
become guardian of the minor? Why did they go to court and
ask for letters of guardian ship in order to take care of the
minor or his property?
- if it’s possible then guys that the parents of the
subject of guardianship must be both deceased or
one of them is deceased however not qualified. Or if
not, they may be other people who may be
interested to be appointed as guardian especially
over the property of the minor.
- Ex. Minor being the beneficiary of insurance
proceeds of the father who died. In the father’s last
will and testament, he designated his brother to be
guardian of the child or to manage the proceeds of
the insurance or over all the properties of the
deceased father. On the other hand, the mother has
never been mentioned. Can the mother being the
legal guardian (automatic man siya legal guardian
being the mother, right?) can she be given priority in
the appointment as guardian? Can she supersede
what was the will of the father of the child and
manage the property of the minor?
- Answer: In so far as the person of the child, you
don’t have to ask for a letters of guardianship in
order to take care of the child. Such is the obligation
of the parent. BUT if it is the management of the
property of the minor, that is a different story. The
state has to step in to protect the interest of the
child. Because it is possible that even if he/she is the
parent of the child, he/she gets interested in the
property and use it for his or her own benefit and
not that of the child. That’s why the state must step
in to protect the interest of the child. SO IT IS NOT
AUTOMATIC FOR A SURVIVING PARENT TO MANAGE
THE PROPERTY OF THE MINOR.
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- So what would the surviving parent or any interested
relative of the minor or person interested in
protecting the property of the minor?
- Answer: petition for the letters of guardianship.
- A 14 yr old child may also petition with the
assistance of the DSWD or anyone else who may act
as his guardian or representative to petition the
appointment of a guardian to manage his property.
This is filed with the RTC.
- This is summary, if the court finds that it could be for
the BEST INTEREST OF THE CHILD, then the court
may grant the petition provided that bond is posted
and how much, it is at the discretion of the court.
Bond is required especially when the property
exceeds P50,000.00 or the annual income of the
child exceeds P50,000.00, the parent should
furnished a bond in such amount the court should
determine but in no case less than 10% of the value
of the property or annual income to guaranty the
performance of the obligations of the prescribed
general guardian.
- This is mandatory now, you can’t find this in the RC
but it is the SC that requires this one, on the case
study report. Who’s going to put the case study
report of the minor child? The social worker of the
LGU or the social worker of the court or a licensed
social worker maybe appointed by the court in order
to make a study report or make his
recommendation.
How to go about it:
- file a petition
- establish the relationship with the person subject of
the guardianship
- enumerate his properties or the income and the
value
- willingness to put up the bond
- publication once a week for 3 consecutive weeks in a
newspaper of general circulation the order of the
initial hearing
- initial hearing:
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
o the petition should establish in order to
prove jurisdictional facts:
- verified petition
- order setting the case for initial
hearing
- notice sent to all persons maybe
interested in the property of the minor
- submit the affidavit of publication
- the newspaper clippings as proof
that there were publications made
once a week for 3 consecutive
weeks
- Thereafter, the court assumes jurisdiction and that would
direct the presentation of evidence. If there’s any opposition,
after the offer of exhibits by the petitioner, then the
opposition will present its evidence. Thereafter, the case is
deemed submitted for decision. And if it is allowed, the court
can issue the letters of guardianship to the petitioner. Then
he takes his oath of office and assumes responsibility over the
property as well as the person of the minor.
- The subject of guardianship is not just limited to the
minor, as well as the incompetent.
- Like because physically and mentally, the person is
incapacitated and cannot manage himself much less
his property, then one may ask for guardianship over
the incompetent.
Is it possible that one is not related my also apply for
guardianship?
Answer: YES.
(Judge tells the story about a case pending in her sala
involving three single rich ladies who were incompetent, and
their other sister requested that their lawyer be appointed as
guardian even if they’re not related to the lawyer. Wala man
silay mga anak to take care of them. Moral lesson – you get
married guys. Haha)
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TERMINATION OF GUARDIANSHIP
Sec. 2, Rule 97. When guardian removed or allowed to resign
– When a guardian becomes insane or otherwise incapable of
discharging his trust or unsuitable therefor, or has wasted or
mismanaged the estate or has failed for thirty (30) days after
it is due to render an account or to 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 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.
o If you are issued letters of guardianship and you
want to sell the property, you cannot just simply
continue that petition in the same petition where
you are issued the letters of guardianship. You have
to file a separate petition asking the court for the
sale or encumbrance of a property of the
incompetent.
ADOPTION
The adopter can either be a Filipino citizen or a
Foreigner. If the adopter is a Filipino citizen, he/she must
possess the following qualifications:
1. Legal age;
2. In possession of full civil capacity and legal rights;
3. Good moral character;
4. Has not been convicted of any crime involving moral
turpitude;
5. Emotionally or psychologically capable of caring for
children;
6. At least sixteen (16) years older than the adoptee (may be
waived when the adopter is the biological parent of the
adoptee, or is the spouse of the adoptee’s parent); and
7. In position to support and care for his/her children in
keeping with the means of the family,
o The child must to be adopted must be below
eighteen (18) years of age who has been
administratively or judicially declared available for
adoption.
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
o Can you adopt a person already of age? Yes.
1. When the child to be adopted is the illegitimate
child of the adopter;
2. When the child to be adopted is the legitimate
child of the adopter’s spouse;
3. When the child to be adopted has been
consistently treated as a child of the adopter during
minority (De Facto Adoption)
o Whose consent is required? (The written consent is
jurisdictional and should be attached as one of the
annexes of the petition otherwise the petition will
not be given due course.)
1. The adoptee, if ten (10) years of age or over;
2. The biological parent(s) of the child, if known, or
the legal guardian, or the proper government
instrumentality which has the legal custody of the
child;
3. The legitimate and adopted sons/daughters ten
(10) years or over, of the adopter(s) and adoptee, if
any;
4. The illegitimate sons/daughters, ten (10) years of
age or over, of the adopter if living with said aopter
and the latter’s spouse;
5. The spouse, if any, of the person adopting or to be
adopted.
Establish:
1. If married, the marriage contract or the divorce decree or
annulment decision;
2. Statement of consent of petitioner’s biological or adopted
when they are above 10 years old;
3. Attach to the petition the medical, physical and
psychological evaluation of the petitioners certified by a duly
competent physician or psychologist;
4. Proof of earning capacity (income tax returns or any
authentic document. If you have bank accounts, secure a
certification as to how much is the deposit in the bank
because it is important that they are financially capable);
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5. Character reference from the local church minister or
employer or member of the immediate community who has
known the petitioner for at least 5 years.
6. Pictures
7. Recent Requirement: Certification from DSWD secretary.
- This is required when you seek to adopt a child who
is not related to you. It is dispensed with if you are related to
the child within the fourth civil degree otherwise you have to
get the certification. That is jurisdictional and court cannot
assume jurisdiction without the certification.
o When the adopter is a married person, his/her
spouse must join him/her in the adoption. However,
in the following instances the spouse may adopt
alone, to wit:
1. If he/she seeks to adopt the legitimate
son/daughter of the other spouse;
2. If he/she seeks to adopt his/her own illegitimate
child: provided, however, that the other spouse
must have signified his/her consent thereto; or
3. If the spouses are legally separated from each
other.
o If adopter is a foreigner:
1. Proof that the he is a resident of the Philippines
for not less than three (3) years. (Certification from
the Barangay or the passport because you would see
when he entered the country.) As long as there is
consistency that he has established his residence in
the Philippines for not less than 3 years;
2. That he is qualified is adopt or has the legal
capacity;
3. Certification of his good moral character;
4. Clearances (police, NBI) to make sure that he has
no criminal records
o The home study report should be attached to the
petition. It is prepared by a DSWD social worker or
social worker of the court so that the court would be
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
appraised as to the circumstances of the petitioners
and of the child sought to be adopted. In the home
study report, there would be finding and
recommendations. It should also be determined
whether there is a need of a 6 months supervised
trial custody because the child must already be
familiar with the petitioners. It can be dispensed
with when the child had been raised by the adopting
parents even before the filing of the case or in the
custody already of the adopting parents.
Effect of the Adoption - Relation with the natural parents will
be terminated or severed except where the said biological
parent of the adoptee is also the spouse of the adopter.
EFFECTS OF THE ADOPTION The relationship of the child with
the natural parents is severed. The child will be considered as
the legitimate child of the adoptive parents. The child shall be
carrying the name of the adoptive parents. The last name of
the adoptive father and the maiden name of the adoptive
mother. Consequently, the old birth certificate shall be
cancelled and a new birth certificate bearing the name of
adoptive parents shall be issued reflecting that he is now an
adopted child of the petitioners.
Adoption proceedings are confidential and so it can only be
accessed by persons after approval of the court.
HABEAS CORPUS May be filed for custody. If the subject of
adoption is a minor, the jurisdiction is with the Family Court,
if none, then the RTC may assume jurisdiction over the writ
for Habeas Corpus. This is urgent, immediately the court will
issue order directing the detainer or person having the
custody of the subject of habeas corpus to bring him before
the court so that court can determine the validity of
detention. This is not yet to decide the merit of the petition
but merely asking the detaining authority to bring the body of
the person subject of writ of habeas corpus. Basically, the
purpose of the writ of habeas corpus is to determine the
legality of the detention. If the court finds the detention
illegal, the court will order the return, release or discharge of
the person detained; otherwise, should the court find the
detention legal, such person will be returned to the detaining
authority.
For as long there is deprivation of physical liberty or freedom
of action, he may ask for writ of habeas corpus. In one case
(Judge Singco handled), where the child was only three or
four years old which should be in the custody of the mother
and despite the order of the court, the father was deprived of
visitation and so then one time when the child was at school,
the father kidnapped the child, and so the mother filed for an
action for writ of habeas corpus. She attached in her petition
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proof that the child was hers and the age of the child, the
child's birth certificate such that being below 7 years old, the
custody of the child should belong to her, and the proof she
reported the father, a blotter for example. Publication is not
necessary. When an order was issued to produce the child
before the court, the father threatened the social worker
against the taking of his child, and so the sheriff made a
return that the father refused to produce the child. Another
order was then issued directing the police officers to assist
the sheriff and the social worker in getting the child, and so
the father was compelled, otherwise he would be arrested. It
was the grandmother who produced the child before the
court and it appeared that it was more of the grandmother
having interest in the custody of the child rather than the
father. The grandmother insisted that she takes care of the
child, etc but she was asked to leave the court room. The
child screamed but the court must be stern otherwise the
child would not go to the mother. The court ordered the
turnover of the custody of the child to the mother, regardless
if the mother has no job at that time. The grandmother
insisted that the child is still studying (Montessori), and the
court stated that the grandmother may continue sending the
child to school, but the child must remain in the custody of
the mother since the parents are unmarried. The father who
claims that he is deprived of his visitation because the
brothers of the child's mother are hostile to him, may visit
the child while the child is in school. Fitness of the mother to
take care of the child, as for example the mother has another
boyfriend etc, was made an issue by the grandmother. The
court ruled that the mother may file a separate petition for
the custody of the child but that issue cannot be raised in a
hearing for habeas corpus. Issue of custody may be
entertained is a separate case because such issue requires a
full blown trial, where there is presentation of petitioner and
opposition and where pretrial is mandatory. Such is not in the
case for writ of Habeas Corpus because the latter is summary
in nature, the need for issuance is immediate. Another case:
A patient detained in a hospital because he was not able to
pay the bills. A person cannot be imprisoned for nonpayment
of debt. Upon filing of the case for writ of habeas corpus, the
court ordered the hospital to show cause as to why the
patient should not be discharged and directing the same to
produce the body of the patient before the court. The court
was then informed that the patient already went home and
the hospital representative claims miscommunication that
the doctor asked the patient to stay in the hospital because
the patient is not yet well enough and so the hospital claims
that it is the doctor and not the hospital who detained the
patient. This is usual, because the hospital is afraid of habeas
corpus, they discharge the patient and the case becomes
moot and academic. The nature of habeas corpus is so urgent
that the order must be issued even beyond office hours. One
case where the subject of the case are dancers of a club, and
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
the parents asked for writ of habeas corpus and upon receipt,
should act right away so that the police will be compelled to
produce the bodies to the court to determine the legality of
their detention.
Because of the sense of immediacy. Because if you
will not get them, maybe they might be kidnapped and
brought to another place. So right then and there, when you
ask for it, it will be issued. And then they brought them to the
court until we have the hearing. We don’t have the funding
for that purpose actually.
We had a case involving a minor who eloped with an
old man who was a millionaire. So the parents asked for
Habeas Corpus. The old man was ordered to produce the
body of the minor. So the minor was brought to court and the
old man said that “it’s not my fault, she came with me.” What
should you do? You should order release to the custody of
the parents. But still after the order was issued, the minor still
went back to the millionaire’s mansion. They eventually got
married.
When one is continuously in jail but he already
served his sentence, then you ask for a Writ of Habeas
Corpus.
Rule 103
CHANGE OF NAME
I had an interesting case. The petitioner’s name was
Maria Moron. She was a nurse abroad. She felt offended all
the time because her co-workers would make fun of her
name. So she filed for a change of name. The reason she
cited was because of the stress, the public ridicule, etc. and
the fact that her name was the subject of jokes. Whenever
she made a mistake, she was always told that she was the
most stupid person in the world. So I granted the petition.
CHANGE OF NAME COMPARED WITH CORRECTION OF
ENTRIES
As to venue (Where to file the Petition)
Change of Name: RTC of the place where petitioner resides
Correction of Entries: RTC of the place where the
corresponding Civil Registry is located
Example: You reside here in Cebu City but you were born in
Iligan City. Your record of birth is therefore with the Civil
Registry Office in Iligan City. Where do you file? You file it in
the RTC of Iligan, not Cebu City.
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Before, there was still no administrative correction
of entries. For example, “Maria Aguanta” but what was
placed in the birth certificate was “Ma. Aguanta.” Now, this
should fall under correction of entries which should be filed in
the RTC of the place where the corresponding Civil Registry
where the document was registered is located. But what was
filed instead is a petition for change of name. Usually, the
petition is sought to be dismissed on the ground of lack of
jurisdiction since this should be a correction of entry and not
a change of name. So I will dismiss the petition since the
change is not substantial so as to constitute a change of
name, like for example, the change is only from “Maria” to
“Ma.” or “Ma.” to “Maria.”
As to the nature of the action
Change of Name: Adversarial; Not Summary
It is adversarial on the assumption that the Change
of Name is sought, to hide from the authorities or assume a
new personality. That is the situation that is sought to be
avoided. That’s why it’s adversarial. In fact the rule is very
specific that there would be a preliminary hearing within 6
months from issuance of the order of publication so that
there will be sufficient time to notify the public that here is
Maria wanting to change her name to Petra. So that if you
have any objection then you can interpose your objection.
Correction of Entries: Non-Adversarial; Summary
A Petition for Change of Name is a remedy allowed
by law by way of exception to the mandatory provisions of
the Civil Code.
RULE 103 has already been amended. Under RA
9048, you now have administrative proceedings for Change
of First Name and Nickname without need of a judicial
order.
1. Change of Surname – by judicial authority
2. Change of First Name and Nickname (RA 9048)–
administrative
(*Inserted by transcriber; not discussed by judge but
found in RA 9048) –
 Who may file: Any person having direct and
personal interest in the change of first
name or nickname
 Where to file petition: with the local civil
registry office of the city or municipality
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
where the record being sought to be
corrected or changed is kept.
 Grounds:
1. First name or nickname is ridiculous,
tainted with dishonour or extremely
difficult to write or pronounce;
2. The new first name or nickname has
been habitually and continuously used
by the petitioner and he has been
publicly known by that first name or
nickname in the community;
3. The change will avoid confusion.
Question: What if the subject is a minor?
Then it will be the parents of the minor who will file
the petition.
Question: You are a legitimate child so you carry the
surname of your father. Can you file a petition for change of
name so that you will now only carry the surname of your
mother?
Usually this is in a situation where the mother is
abroad and married to a foreigner. So the mother now wants
to petition the child. But the child bears another family name.
The mother now wants to file a petition for change of name
so that the child will now bear the maiden name of the
mother. In that case, who will be your respondent? Because
remember, this is adversarial. The change of surname will
affect the filiation of the child with respect to his father and
his status as legitimate child and more importantly, his
successional rights.
Who would now be the respondents?
1. The Local Civil Registrar who issued the birth
certificate
2. The National Statistics Office (now the Philippine
Statistics Authority)
3. The natural father who may oppose the petition
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Remedial Law Review 2015-2016
Question: Can a resident alien file a petition to change his
name?
Yes, a resident alien is allowed to file a petition for
change of name but not a non-resident alien.
I have one case where the petitioner’s name is “Baby
girl” but he’s a boy. By the way change of entry as to gender
is not summary and administrative. It has to be by judicial
authority. In this case, the mother also wants to change the
gender as well. He was only 17 years old. He actually wanted
to keep his name and gender because he wanted to be a girl
but the mother insisted otherwise. Can you change your
name to that of a female after you undergone sex-change
operation? No. It has to be natural. But in America, it’s very
easy to change the name. It’s only administrative. (Story
about her friend Greta who had her name changed to Grace
in the US and about transgenders changing the gender entry
in their passports from male to female).
Rule 108
CORRECTION OF ENTRIES
I had this case that when the child was born out of
wedlock. Because the mother was ashamed, the birth
certificate was simulated by stating therein a date and place
of marriage to the father. Later, when the child was about to
enrol in school, one of the requirements was the submission
of a marriage certificate. However, the marriage certificate
would not jive with the birth certificate of the child because
there’s a different date and place although the name of the
father was the same since they got married after the child
was born. So now, they ask that the child’s birth certificate be
corrected in order to reflect the date and place of marriage.
Can that be done?
Question? Can that be done? Aron ma legitimated
sad kuno ang bata.
Under the New Administrative Law, correction of the
date/place of marriage can be done administratively, not in
the court anymore. The trouble here is, they filed a case in
court notwithstanding, because they wanted that icorrect
nalang diretso and the child be recognized as legitimated.
Anyway, there I found it so impractical, it just seemed they let
the date and place… and I referred them to the local civil
registrar for legitimation to be annotated on the birth
certificate. Sus maryosep I tell you, daginuton pajud na sa Sol.
Gen. They filed a motion for reconsideration because they
Based on the discussion by Judge Estela Alma Singco
SPECIAL PROCEEDINGS
said I don’t have jurisdiction, it should be the local civil
registrar. It’s just a duplication, do you understand? Wrong
jurisdiction kuno. The correction of the date and place of
marriage should have been done by the local civil registrar,
and the status of legitimation be annotated. I denied and
said, my order should stay. Then on the entry, left it, the civil
registrar, yes they do that, but the decision on the entry,
what’s wrong with it? If we have it deleted, susmaryosep ni
sila, it’s so literal their interpretation of the law. It should not
have been done by me, but I already acquired jurisdiction. I
don’t want to dismiss, they have paid already the filing fees
and we’ve had hearing on the case so might as well do the
purpose partially, without necessarily dismissing the case.
What should have been done was to have it corrected
through administrative process, not in the court kung kana
lang, entries of the date and place of marriage. Questions or
clarifications?
There’s a new development, you were divorced
abroad. You were married to a foreigner before. How do you
have that divorce decree, a foreign judgment, recognized by
the Philippine courts? Muagi paka ug recognition of foreign
judgment or can you just simply ask for the correction of
entries in your marriage certificate so that it will be
annotated? It’s not just the birth certificate that’s a subject of
correction, but also marriage certificate, death certificate.
Even some documents for corrections; a title for corrections
on the date or the number. That can be done through a
special proc.
This one is a marriage certificate, she contracted
divorce. She is not a Philippine citizen anymore. She wants,
because she got married here in the Philippines so the
marriage certificate was registered with the local civil
registrar. Should you need to file a petition for recognition of
foreign judgment, or just simply file a petition to correct your
marriage certificate in order to annotate therein the decree
of divorce which was contracted abroad? Especially when you
were not the one who initiated the divorce and it was your
foreigner husband... In a recent decision of the Supreme
Court, all that is needed now is just a correction of entries,
just to annotate in the title. You don’t have to go through the
process, kay masdugay man ang petition for recognition of a
foreign judgment. This is an ordinary action. It is a trial. With
the other one, hearing ka then tapos nata. I just can’t get the
citation, take note of that case.
Any questions or clarifications?
Recognition of the minor natural children. You’ve
mastered this in your civil code and succession. What is the
manner of recognition? File a petition. Kung voluntary, no
problem. But if you compel the father to recognize the child,
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Remedial Law Review 2015-2016 SPECIAL PROCEEDINGS

you do that during his lifetime. And you have to have proof,
private or public documents.

Constitution of the Family home guys... And then

declaration of absentees. The easiest way to set aside the
first marriage is to file a petition for presumptive death. Easy
to deny as well. I say to them, “Awww, binuang nani inyuha.”
Ana sad sila, “ingun man gud ang abogado your honor nga
dali ra kuno ang presumptive death. Pakyaw pagyud ni your
honor. Wala mi kwarta, kani nalang.”

When was the last time you saw your husband?

Dugay na kayo, 15 years ago. There was no instance that he
communicated? Nitawag man xa nako your honor last year,
nangutana what happened to the children. Wala sila nagkita
but nitawag. Imo ranang pakalitan. Denied. Dismissed. For
reconsideration your honor? Denied. Binuang mani…

In presumptive death, you have to make an effort to

locate and he cannot be found. So you have to ask, what is
your proof that you made an effort to locate your the
husband? Nibiya kuno, abandoned sila for more than ten
years na. What did you do? Gipa radio bombo ra… What is
your proof? Mabuang ko. Your allegations are not
corroborated. I cannot believe you. You have to show a
newspaper declaring him missing. You have to show proof.
Naa pa sad, “I sent a letter, your honor. Your honor, I
received return to sender, so he’s not there anymore at the
indicated address, so he’s missing.”

Nawala kuno, police blotter! Missing man kaha, did

you report it to the police? No effort! Abi kaha nila ug
automatic kay special proc ra and non- adversarial. “Wala
bitaw ni kontra your honor, and it’s not final,” mu-ana dayon
ang mga abogado. It’s not final, but am I ignorant to declare
someone who may not be at all dead? Prove to me firs!
Muingon pa silag Yolanda, ibutang nimo diha resident, death
certificate… resident of Tacloban City and because of Yolanda
basin patay na. Maybe you would have a chance, but you
make an effort to locate, otherwise no effort then no grant of
presumption. Nagdali lagi kay magminyo na, foreigner kuno.
That’s the usual thing, and it’s really funny guys.

Made by the 2015-2016 Remedial Review Team

ALO, BARING, BURDEOS, CADORNA, DIONALDO, ENRIQUEZ,

ENTERA, ESCABARTE, V. FERNANDEZ, GOCUAN, ITAO,
LIGARAY, MARTINEZ, MORALES, PAPA, & YANO

GOD BLESS SA EXAMS!

Page 21 of 21
Based on the discussion by Judge Estela Alma Singco