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Special Proceedings Riano PDF
Special Proceedings Riano PDF
The jurisdiction of the RTC is limited to the settlement and The determination is only provisional subject to a proper
adjudication of properties of the deceased and cannot action in a separate action to resolve the title.
extend to collateral matters.
The jurisdiction of the probate court merely relates to
VENUE IN JUDICIAL SETTLEMENT OF ESTATE matters having to do with the settlement of the estate and
the probate of wills, the appointment and removal of
The residence of the decedent at the time of his death is administrators, executors, guardians and trustees. The
determinative of the venue of the proceeding. question of ownership is, as a rule, an extraneous matter
which the probate court cannot resolve with finality.
partition, or the sole heir who adjudicates the entire estate
POWERS AND DUTIES OF PROBATE COURT to himself by means of an affidavit shall file,
simultaneously with and as a condition precedent to the
The powers and duties of a probate court: filing of the public instrument, or stipulation in the action
1) Distribute shares; for partition, or of the affidavit in the office of the register
2) Determine the legal heirs; of deeds, a bond with the said register of deeds, in an
3) Issue warrants and processes to secure amount equivalent to the value of the personal property
attendance of witnesses; involved as certified to under oath by the parties
4) Determine and rile upon issues relating to the concerned and conditioned upon the payment of any just
settlement of the estate, such as administration, claim that may be filed under section 4 of this rule.
liquidation, and distribution of the estate; and
5) Determine the following: The fact of the extrajudicial settlement or administration
a) Heirs of the decedent; shall be published in a newspaper of general circulation in
b) Recognition of natural child; the manner provided in the next succeeding section; but
c) Validity of the disinheritance effected no extrajudicial settlement shall be binding upon any
by testator; person who has not participated therein or had no notice
d) Status of a woman who claims to be thereof.
the lawful wife of the decedent;
e) Validity of waiver of hereditary heirs; Extrajudicial partition of the estate shall be valid when the
f) Status of each heir; following conditions concur:
g) Whatever property in inventory is 1) The decedent left no will;
conjugal or exclusive property of 2) The decedent left no debts, or if there were debts
deceased spouse; and left, all had been paid;
h) Matters incidental or collateral to the 3) The heirs are all of age or if they are minors, the
settlement and distribution of the latter are represented by their judicial guardian or
estate. legal representative;
4) The partition was made by means of a public
instrument or affidavit duly filed with the Register
SUMMARY SETTLEMENT OF ESTATES (RULE 74) of Deeds; and
5) The fact of the extrajudicial settlement or
administration shall be published in a newspaper
Summary settlement of estate is a judicial proceeding of general circulation.
wherein, without the appointment of executor or
administrator, and without delay, the competent court TWO-YEAR PRESCRIPTIVE PERIOD
summarily proceeds to value the estate of the decedent;
ascertain his debts and order payment thereof; allow his
It shall be presumed that the decedent left no debts if no
will if any; declare his heirs, devisee and legatees; and
creditor files a petition for letters of administration within
distribute his net estate among his known heirs, devisees,
two (2) years after the death of the decedent.
and legatees, who shall thereupon be entitled to receive
and enter into the possession of the parts of the estate so
If it shall appear at any time within two (2) years after the
awarded to them, respectively.
settlement and distribution of an estate in accordance with
the provisions of either of the first two sections of this rule,
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT
that an heir or other person has been unduly deprived of
BETWEEN HEIRS his lawful participation in the estate, such heir or such
WHEN ALLOWED other person may compel the settlement of the estate in
the courts in the manner hereinafter provided for the
If the decedent left no will and no debts and the heirs are purpose of satisfying such lawful participation.
all of age, or the minors are represented by their judicial or
legal representatives duly authorized for the purpose, the And if within the same time of two (2) years, it shall
parties may, without securing letters of administration, appear that there are debts outstanding against the estate
divide the estate among themselves as they see fit by which have not been paid, or that an heir or other person
means of a public instrument filed in the office of the has been unduly deprived of his lawful participation
register of deeds, and should they disagree, they may do so payable in money, the court having jurisdiction of the
in an ordinary action of partition. estate may, by order for that purpose, after hearing, settle
the amount of such debts or lawful participation and order
If there is only one heir, he may adjudicate to himself the how much and in what manner each distributee shall
entire estate by means of an affidavit filed in the office of contribute in the payment thereof, and may issue
the register of deeds. execution, if circumstances require, against the bond
provided in the preceding section or against the real estate
The parties to an extrajudicial settlement, whether by belonging to the deceased, or both. Such bond and such
public instrument or by stipulation in a pending action for real estate shall remain charged with a liability to
creditors, heirs, or other persons for the full period of two against the distributees within the statute of
(2) years after such distribution, notwithstanding any limitations, but not against the bond.
transfers of real estate that may have been made. 3) The action to annul a deed of extrajudicial settlement
on the ground of fraud should be filed within four
AFFIDAVIT OF SELF-ADJUDICATION years from the discovery of the fraud.
BY SOLE HEIR
If there is only one heir, he may adjudicate to himself the PRODUCTION AND PROBATE OF WILL
entire estate by means of an affidavit filed in the office of (RULE 75)
the register of deeds.
NATURE OF PROBATE PROCEEDING
SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE;
WHEN ALLOWED
Probate of a will is a proceeding in rem. It cannot be
dispensed with and substituted by another
Whenever the gross value of the estate of a deceased
proceeding, judicial or extrajudicial, without offending
person, whether he died testate or intestate, does not
public policy.
exceed ten thousand pesos, and that fact is made to appear
It is mandatory as no will shall pass either real or
to the RTC having jurisdiction of the estate by the petition
personal property unless proved and allowed in
of an interested person and upon hearing, which shall be
accordance with the Rules.
held not less than (1) month nor more than three (3)
It is imprescriptible, because it is required by public
months from the date of the last publication of a notice
policy and the state could not have intended to defeat
which shall be published once a week for three (3)
the same by applying thereto the statute of limitation
consecutive weeks in a newspaper of general circulation in
of actions.
the province, and after such other notice to interested
persons as the court may direct, the court may proceed
WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED
summarily, without the appointment of an executor or
TO NOTICE
administrator, and without delay, to grant, if proper,
allowance of the will, if any there be, to determine who are
Any executor, devisee, or legatee named in a will, or any
the persons legally entitled to participate in the estate, and
other person interested in the estate, may, at any time
to apportion and divide it among them after the payment
after the death of the testator, petition the court having
of such debts of the estate as the court shall then find to be
jurisdiction to have the will allowed, whether the same be
due; and such persons, in their own right, if they are of
in his possession or not, or is lost or destroyed.
lawful age and legal capacity, or by their guardians or
The testator himself may, during his lifetime,
trustees legally appointed and qualified, if otherwise, shall
petition the court for the allowance of his will.
thereupon be entitled to receive and enter into the
possession of the portions of the estate so awarded to
The court shall also cause copies of the notice of the time
them respectively. The court shall make such order as may
and place fixed for proving the will to be addressed to the
be just respecting the costs of the proceedings, and all
designated or other known heirs, legatees, and devisees of
orders and judgments made or rendered in the course
the testator resident in the Philippines at their places of
thereof shall be recorded in the office of the clerk, and the
residence, and deposited in the post office with the
order of partition or award, if it involves real estate, shall
postage thereon prepaid at least twenty (20) days before
be recorded in the proper register's office.
the hearing, if such places of residence be known.
The court, before allowing a partition, may require the
A copy of the notice must in like manner be mailed to the
distributees, if property other than real is to be
person named as executor, if he be not be petitioner; also,
distributed, to file a bond in an amount to be fixed by
to any person named as co-executor not petitioning, if
court, conditioned for the payment of any just claim.
their places of residence be known. Personal service of
copies of the notice at least ten (10) days before the day of
REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-
hearing shall be equivalent to mailing. If the testator asks
JUDICIAL SETTLEMENT OF ESTATE
for the allowance of his own will, notice shall be sent only
to his compulsory heirs.
1) The creditor may ask for administration of enough
property of the estate sufficient to pay the debt, but
the heirs cannot prevent such administration by ALLOWANCE OR DISALLOWANCE OF WILL (RULE 76)
paying the obligation.
2) Where the estate has been summarily settled, the
unpaid creditor may, within the two-year period, file a
motion in the court wherein such summary settlement
was for the payment of his credit. After the lapse of the CONTENTS OF PETITION FOR ALLOWANCE OF WILL
two-year period, an ordinary action may be instituted
A petition for the allowance of a will must show, so far as belonging to persons who are inhabitants of another state
known to the petitioner: or country.
1) The jurisdictional facts;
2) The names, ages, and residences of the heirs, If the court is satisfied, upon proof taken and filed, that the
legatees, and devisees of the testator or decedent; will was duly executed, and that the testator at the time of
3) The probable value and character of the property its execution was of sound and disposing mind, and not
of the estate; acting under duress, menace, and undue influence, or
4) The name of the person for whom letters are fraud, a certificate of its allowance, signed by the judge,
prayed; and attested by the seal of the court shall be attached to
5) If the will has not been delivered to the court, the the will and the will and certificate filed and recorded by
name of the person having custody of it. the clerk. Attested copies of the will devising real estate
and of certificate of allowance thereof, shall be recorded in
But no defect in the petition shall render void the the register of deeds of the province in which the lands lie.
allowance of the will, or the issuance of letters
testamentary or of administration with the will annexed. The general rule universally recognized is that
administration extends only to the assets of the decedent
GROUNDS FOR DISALLOWING A WILL found within the state or country where it was granted, so
that an administrator appointed in one state or country
The will shall be disallowed in any of the following cases; has no power over the property in another state or
1) If not executed and attested as required by law; country.
2) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its When a person dies intestate owning property in the
execution; country of his domicile as well as in foreign country,
3) If it was executed under duress, or the influence of administration shall be had in both countries. That which
fear, or threats; is granted in the jurisdiction of the decedent’s domicile is
4) If it was procured by undue and improper termed the principal administration, while any other
pressure and influence, on the part of the administration is termed ancillary administration. The
beneficiary, or of some other person for his ancillary administration is proper whenever a person dies
benefit; leaving in a country other than that of his domicile,
5) If the signature of the testator was procured by property to be administered in the nature of assets of the
fraud or trick decedent, liable for his individual debts or to be
6) If the testator acted by mistake or did not intend distributed among his heirs.
that the instrument he signed should be his will at
the time of affixing his signature thereto.
LETTERS TESTAMENTARY AND OF ADMINISTRATION
REPROBATE; REQUISITES BEFORE WILL PROVED (RULE 78)
OUTSIDE ALLOWED IN THE PHILIPPINES; EFFECTS OF
PROBATE Letters testamentary is the appointment issued by a
probate court, after the will has been admitted to probate,
Will proved outside Philippines may be allowed here. Wills to the executor named in the will to administer the estate
proved and allowed in a foreign country, according to the of the deceased testator, provided the executor named in
laws of such country, may be allowed, filed, and recorded the will is competent, accepts the trust and gives a bond.
by the proper Court of First Instance in the Philippines.
WHEN AND TO WHOM LETTERS OF ADMINISTRATION
If it appears at the hearing that the will should be allowed GRANTED
in the Philippines, the court shall so allow it, and a
certificate of its allowance, signed by the judge, and
No person is competent to serve as executor or
attested by the seal of the court, to which shall be attached
administrator who:
a copy of the will, shall be filed and recorded by the clerk,
a) Is a minor;
and the will shall have the same effect as if originally
b) Is not a resident of the Philippines; and
proved and allowed in such court.
c) Is in the opinion of the court unfit to execute the
duties of the trust by reason of drunkenness,
When a will is thus allowed, the court shall grant letters
improvidence, or want of understanding or
testamentary or letters of administration with the will
integrity, or by reason of conviction of an offense
annexed, and such letters testamentary or of
involving moral turpitude.
administration, shall extend to all the estate of the testator
in the Philippines. Such estate, after the payment of just
The executor of an executor shall not, as such, administer
debts and expenses of administration, shall be disposed of
the estate of the first testator.
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
A married woman may serve as executrix or sufficiency of such grounds. A petition may, at the same
administratrix, and the marriage of a single woman shall time, be filed for letters of administration with the will
not affect her authority so to serve under a previous annexed.
appointment.
POWERS AND DUTIES OF EXECUTORS AND
When a will has been proved and allowed, the court shall ADMINISTRATORS; RESTRICTIONS ON THE POWERS
issue letters testamentary thereon to the person named as (RULE 84)
executor therein, if he is competent, accepts the trust, and
gives bond as required by these rules. An EXECUTOR is the person nominated by a testator to
carry out the directions and requests in his will and to
When all of the executors named in a will cannot act dispose of his property according to his testamentary
because of incompetency, refusal to accept the trust, or provisions after his death.
failure to give bond, on the part of one or more of them,
letters testamentary may issue to such of them as are An ADMINISTRATOR is person appointed by the court, in
competent, accept and give bond, and they may perform accordance with the governing statute, to administer and
the duties and discharge the trust required by the will. settle intestate estate and such testate estate as no
competent executor was designated by the testator.
If no executor is named in the will, or the executor or
executors are incompetent, refuse the trust, or fail to give The executor or administrator of the estate of a deceased
bond, or a person dies intestate, administration shall be partner shall at all times have access to, and may examine
granted: and take copies of, books and papers relating to the
a) To the surviving husband or wife, as the case may partnership business, and may examine and make invoices
be, or next of kin, or both, in the discretion of the of the property belonging to such partnership; and the
court, or to such person as such surviving husband surviving partner or partners, on request, shall exhibit to
or wife, or next of kin, requests to have appointed, him all such books, papers, and property in their hands or
if competent and willing to serve; control. On the written application of such executor or
b) If such surviving husband or wife, as the case may administrator, the court having jurisdiction of the estate
be, or next of kin, or the person selected by them, may order any such surviving partner or partners to freely
be incompetent or unwilling, or if the husband or permit the exercise of the rights, and to exhibit the books,
widow, or next of kin, neglects for thirty (30) days papers, and property, as in this section provided, and may
after the death of the person to apply for punish any partner failing to do so for contempt.
administration or to request that administration
be granted to some other person, it may be An executor or administrator shall maintain in tenantable
granted to one or more of the principal creditors, repair the houses and other structures and fences
if competent and willing to serve; belonging to the estate, and deliver the same in such repair
c) If there is no such creditor competent and willing to the heirs or devisees when directed so to do by the
to serve, it may be granted to such other person as court.
the court may select.
An executor or administrator shall have the right to the
ORDER OF PREFERENCE; PRIORITY IN SELECTING AN possession and management of the real as well as the
ADMINISTRATOR personal estate of the deceased so long as it is necessary
for the payment of the debts and the expenses of
1) Surviving spouse, or next of kin, or both, or person as administration.
such surviving spouse, or next of kin, requests;
2) One or more of the principal creditors – if such An administrator of an intestate cannot exercise the right
surviving spouse, or next of kin, or the person selected, of legal redemption over a portion of the property owned
be incompetent or unwilling, or if they neglect for 30 in common sold by one of the other co-owners since this is
days after the death of the decedent to apply for not within the powers of administration.
administration or to request that administration be
granted to some other person, it may be granted to, if Where the estate of a deceased person is already the
competent and willing to serve; subject of a testate or intestate proceeding, the
3) Such other person as the court may select. administrator cannot enter into any transaction involving
it without any prior approval of the Court.
OPPOSITION TO ISSUANCE OF LETTERS
TESTAMENTARY; SIMULTANEOUS FILING OF PETITION The right of an executor or administrator to the possession
FOR ADMINISTRATION and management of the real and personal properties of the
deceased is not absolute and can only be exercised so long
Any person interested in a will may state in writing the as it is necessary for the payment of the debts and
grounds why letters testamentary should not issue to the expenses of administration.
persons named therein executors, or any of them, and the
court, after hearing upon notice, shall pass upon the APPOINTMENT OF SPECIAL ADMINISTRATOR
When there is delay in granting letters testamentary or of TIME WITHIN WHICH CLAIMS SHALL BE FILED;
administration by any cause including an appeal from the EXCEPTIONS
allowance or disallowance of a will, the court may appoint
a special administrator to take possession and charge of The court shall state the time for the filing of claims against
the estate of the deceased until the questions causing the the estate, which shall not be more than twelve (12) nor
delay are decided and executors or administrators less than six (6) months after the date of the first
appointed. publication of the notice. However, at any time before an
order of distribution is entered, on application of a
GROUNDS FOR REMOVAL OF ADMINISTRATOR creditor who has failed to file his claim within the time
previously limited, the court may, for cause shown and on
Administration revoked if will discovered - If after letters such terms as are equitable, allow such claim to be filed
of administration have been granted on the estate of a within a time not exceeding one (1) month.
decedent as if he had died intestate, his will is proved and
allowed by the court, the letters of administration shall be STATUTE OF NON-CLAIMS
revoked and all powers thereunder cease, and the
administrator shall forthwith surrender the letters to the A claim by a person against the estate of deceased should
court, and render his account within such time as the court be made in not less than 6 months nor more than 12
directs. Proceedings for the issuance of letters months since the first publication of allowance of the will.
testamentary or of administration under the will shall be If the said claims are not filed within the time limited in the
as hereinbefore provided. notice, they are forever be barred.
If an executor or administrator neglects to render his CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE
account and settle the estate according to law, or to ESTATE
perform an order or judgment of the court, or a duty
expressly provided by these rules, or absconds, or If the executor or administrator has a claim against the
becomes insane, or otherwise incapable or unsuitable to estate he represents, he shall give notice thereof, in
discharge the trust, the court may remove him, or, in its writing, to the court, and the court shall appoint a special
discretion, may permit him to resign. When an executor or administrator, who shall, in the adjustment of such claim,
administrator dies, resigns, or is removed the remaining have the same power and be subject to the same liability as
executor or administrator may administer the trust alone, the general administrator or executor in the settlement of
unless the court grants letters to someone to act with him. other claims.
If there is no remaining executor or administrator,
administration may be granted to any suitable person (Sec. The court may order the executor or administrator to pay
2, Rule 82). to the special administrator necessary funds to defend
such claim.
CLAIMS AGAINST THE ESTATE (RULE 86)
PAYMENT OF DEBTS (RULE 88)
Administration is for the purpose of liquidation of the If there are sufficient properties, the debts shall be paid,
estate and distribution of the residue among the heirs and thus:
legatees. Liquidation means the determination of all the 1) All debts shall be paid in full within the time
assets of the estate and payment of all debts and expenses. limited for the purpose (Sec. 1);
2) If the testator makes provision by his will, or
The purpose of presentation of claims against decedents of designates the estate to be appropriated for the
the estate in the probate court is to protect the estate of payment of debts they shall be paid according to
deceased persons. That way, the executor or administrator the provisions of the will, which must be
will be able to examine each claim and determine whether respected (Sec. 2);
it is a proper one which should be allowed. 3) If the estate designated in the will is not sufficient,
such part of the estate as is not disposed of by will
Further, the primary object of the provisions requiring shall be appropriated for the purpose (Sec. 2);
presentation is to apprise the administrator and the 4) The personal estate not disposed of by will shall
probate court of the existence of the claim so that a proper be first chargeable with payment of debts and
and timely arrangement may be made for its payment in expenses (Sec. 3);
full or by pro rata portion in the due course of the 5) If the personal estate is not sufficient, or its sale
administration, inasmuch as upon the death of a person, would be detrimental to the participants of the
his entire estate is burdened with the payment of all his estate, the real estate not disposed of by will shall
debts and no creditor shall enjoy any preference or be sold or encumbered for that purpose (Sec. 3);
priority; all of them shall share pro rata in the liquidation 6) Any deficiency shall be met by contributions from
of the estate of the deceased. devisees, legatees and heirs who have entered into
possession of portions of the estate before debts
and expenses have been paid (Sec. 6); ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS
7) The executor or administrator shall retain AND ADMINISTRATORS
sufficient estate to pay contingent claims when the
same becomes absolute (Sec. 4). An action to recover real or personal property, or an
interest therein, from the estate, or to enforce a lien
If the estate is insolvent, the debts shall be paid in the thereon, and actions to recover damages for an injury to
following manner: person or property, real or personal, may be commenced
1) The executor or administrator shall pay the debts against the executor or administrator.
in accordance with the preference of credits
established by the Civil Code (Sec. 7); Whenever a party to a pending action dies, and the claim is
2) No creditor of any one class shall receive any not thereby extinguished, it shall be the duty of his counsel
payment until those of the preceding class are to inform the court within thirty (30) days after such death
paid (Sec. 8); of the fact thereof, and to give the name and address of his
3) If there are no assets sufficient to pay the credits legal representative or representatives. Failure of counsel
of any one class of creditors, each creditor within to comply with this duty shall be a ground for disciplinary
such class shall be paid a dividend in proportion action. The heirs of the deceased may be allowed to be
to his claim (Sec. 8); substituted for the deceased, without requiring the
4) Where the deceased was a nonresident, his estate appointment of an executor or administrator and the court
in the Philippines shall be disposed of in such a may appoint a guardian ad litem for the minor heirs.
way that creditors in the Philippines and
elsewhere may receive an equal share in The court shall forthwith order said legal representative or
proportion to their respective credits (Sec. 9); representatives to appear and be substituted within a
5) Claims duly proved against the estate of an period of thirty (30) days from notice. If no legal
insolvent resident of the Philippines, the executor representative is named by the counsel for the deceased
or administrator, having had the opportunity to party, or if the one so named shall fail to appear within the
contest such claims, shall e included in the specified period, the court may order the opposing party,
certified list of claims proved against the within a specified time, to procure the appointment of an
deceased. The owner of such claims shall be executor or administrator for the estate of the deceased
entitled to a just distribution of the estate in and the latter shall immediately appear for and on behalf
accordance with the preceding rules if the of the deceased. The court charges in procuring such
property of such deceased person in another appointment, if defrayed by the opposing party, may be
country is likewise equally apportioned to the recovered as costs.
creditors residing in the Philippines and other
creditors, according to their respective claims When the action is for recovery of money arising from
(Sec. 10); contract, express or implied, and the defendant dies before
6) It must be noted that the payments of debts of the entry of final judgment in the court in which the action was
decedent shall be made pursuant to the order of pending at the time of such death, it shall not be dismissed
the probate court (Sec. 11). but shall instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff
On granting letters testamentary or administration the therein shall be enforced in the manner especially
court shall allow to the executor or administrator a time provided in these Rules for prosecuting claims against the
for disposing of the estate and paying the debts and estate of a deceased person.
legacies of the deceased, which shall not, in the first
instance, exceed one (1) year; but the court may, on REQUISITES BEFORE CREDITOR MAY BRING AN ACTION
application of the executor or administrator and after FOR RECOVERY OF PROPERTY FRAUDULENTLY
hearing on such notice of the time and place therefor given CONVEYED BY THE DECEASED
to all persons interested as it shall direct, extend the time
as the circumstances of the estate require not exceeding 1) There is a deficiency of assets in the hands of an
six (6) months for a single extension nor so that the whole executor or administrator for the payment of debts
period allowed to the original executor or administrator and expenses of administration;
shall exceed two (2) years (Sec. 15). 2) The deceased in his lifetime had made or attempted to
make a fraudulent conveyance of his real or personal
property, or a right or interest therein, or a debt or
ACTIONS BY AND AGAINST EXECUTORS AND credit, with intent to defraud his creditors or to avoid
ADMINISTRATORS (RULE 87) any right, debt or duty; or had so conveyed such
property, right, debt, or credit that by law the
No action upon a claim for the recovery of money or debts conveyance would be void as against his creditors;
or interest thereon shall be commenced against the 3) The subject of the attempted conveyance would be
executor or administrator. liable to attachment by any of them in his lifetime;
4) The executor or administrator has shown to have no
desire to file the action or failed to institute the same No distribution shall be allowed until the payment of the
within a reasonable time; obligations above mentioned has been made or provided
5) Leave is granted by the court to the creditor to file the for, unless the distributees, or any of them, give a bond, in
action; a sum to be fixed by the court, conditioned for the payment
6) A bond is filed by the creditor as prescribed in the of said obligations within such time as the court directs.
Rules;
7) The action by the creditor is in the name of the Questions as to advancement to be determined. Questions
executor or administrator. 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
DISTRIBUTION AND PARTITION (RULE 90) person raising the questions and on the heir.
A trustee may be removed upon petition to the proper RTC Such new trustee shall have and exercise the same powers,
of the parties beneficially interested, after due notice to the rights, and duties as if he had been originally appointed,
trustee and hearing, if it appears essential in the interests and the trust estate shall vest in him in like manner as it
of the petitioners. The court may also, after due notice to had vested or would have vested, in the trustee in whose
all persons interested, remove a trustee who is insane or place he is substituted; and the court may order such
otherwise incapable of discharging his trust or evidently conveyance to be made by the former trustee or his
unsuitable therefor. A trustee, whether appointed by the representatives, or by the other remaining trustees, as may
court or under a written instrument, may resign his trust if be necessary or proper to vest the trust estate in the new
it appears to the court proper to allow such resignation. trustee, either alone or jointly with the others.
a) To have care and custody over the person of his ward, Qualifications of guardians:
and/or the management of his estate (Sec. 1); a) Moral character;
b) To pay the just debts of his ward out of the latter‘s b) Physical, mental and psychological condition;
estate (Sec. 2); c) Financial status;
d) Relationship of trust with the minor; f) Habitual use of alcohol, dangerous drugs or
e) Availability to exercise the powers and duties of a regulated substances;
guardian for the full period of the guardianship; g) Marital misconduct;
f) Lack of conflict of interest with the minor; and h) The most suitable physical, emotional, spiritual,
g) Ability to manage the property of the minor. psychological and educational environment for
the holistic development and growth of the minor;
Order of preference in the appointment of guardian or the and
person and/or property of minor: i) The preference of the minor over 7 years of age
a) The SURVIVING GRANDPARENT and in case and of sufficient discernment, unless the parent
several grandparents survive, the court shall chosen is unfit (Sec. 14, AM No. 03-04-04-SC).
select any of them taking into account all relevant The court shall order a social worker to conduct a
considerations; case study of the minor and all the prospective
b) The OLDEST BROTHER OR SISTER of the minor guardians and submit his report and
over 21 years of age, unless unfit or disqualified; recommendation to the court for its guidance
c) The ACTUAL CUSTODIAN of the minor over 21 before the scheduled hearing.
years of age, unless unfit or disqualified; and
d) Any OTHER PERSON, who in the sound discretion
ADOPTION (RULES 99
of the court, would serve the best interests of the
100, SUPERSEDED BY AM 02-6-02-SC)
minor.
Factors to consider in determining custody: Adoption is a juridical act which creates between two
a) Any extrajudicial agreement which the parties persons a relationship similar to that which results
may have bound themselves to comply with from legitimate paternity.
respecting the rights of the minor to maintain Adoption is a juridical act, a proceeding in rem, which
direct contact with the non-custodial parent on a creates between the two persons a relationship similar
regular basis, except when there is an existing to that which results from legitimate paternity and
threat or danger of physical, mental, sexual or filiation.
emotional violence which endangers the safety Adoption is not an adversarial proceeding. An
and best interests of the minor; adversarial proceeding is one having opposing parties,
b) The desire and ability of one parent to foster an contested, as distinguished from an ex parte
open and loving relationship between the minor application, one of which the party seeking relief has
and the other parent; given legal warning to the other party and afforded the
c) The health, safety and welfare of the minor; latter an opportunity to contest it excludes an
d) Any history of child or spousal abuse by the adoption proceeding. In adoption, there is no
person seeking custody or who has had any filial particular defendant to speak of since the proceeding
relationship with the minor, including anyone involves the status of a person it being an action in
courting the parent; rem.
e) The nature and frequency of contact with both
parents;
Decree of Adoption: Issued by Philippine Family Decree of Adoption: Issued by a foreign court.
Court. Consent Required:
Consent Required: Written consent of the 1) Written consent of biological or adopted children
following to the adoption is required, in the form of above 10 years of age, in the form of sworn statement
affidavit: is required to be attached to the application to be filed
with the FC or ICAB;
1) adoptee, if 10 years of age or over; 2) If a satisfactory pre-adoptive relationship is formed
2) biological parent/s of the child, if known, or between the applicant and the child, the written
the legal guardian, or the proper government consent to the adoption executed by the DSWD is
instrumentality which has legal custody of the required.
child;
3) legitimate and adopted sons or daughters, 10
years of age or over, of the adopter/s and
adoptee, if any;
4) illegitimate sons/daughters, 10 years of age of
over, of the adopter if living with said adopter
and the latter‘s spouse, if any;
5) spouse, if any, of the person adopting or to be
adopted.
INTER-COUNTRY ADOPTION (RA 8043) In all petitions for habeas corpus, the court must inquire
into every phase and aspect of the petitioner’s detention
Inter-Country Adoption refers to the socio-legal process of from the moment petitioner was taken into custody up to
adopting a Filipino child by a foreigner or a Filipino citizen the moment the court passes upon the merits of the
permanently residing abroad where the petition is filed, petition and only after such scrutiny can the court satisfy
the supervised trial custody is undertaken, and the decree itself that the due process clause of the Constitution has
of adoption is issued in the Philippines. been satisfied.
(Note: for CONTENTS OF THE PETITION and CONTENTS OF WHEN WRIT DISALLOWED/DISCHARGED
THE RETURN of Habeas Corpus, please see the table below)
If it appears that the person alleged to be restrained of his
PEREMPTORY WRIT PRELIMINARY CITATION liberty is in the custody of an officer under process issued
Unconditionally Requires the respondent to by a court or judge or by virtue of a judgment or order of a
commands the respondent appear and show cause court of record, and that the court or judge had jurisdiction
to have the body of the why the peremptory writ to issue the process, render the judgment, or make the
detained person before the should not be granted order, the writ shall not be allowed; or if the jurisdiction
court at a time and place appears after the writ is allowed, the person shall not be
therein specified; discharged by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in this rule
be held to authorize the discharge of a person charged
WHEN NOT PROPER/APPLICABLE with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment.
Instances when the writ of habeas corpus is not proper
are:
RULE 103 (Change of Name) RA 9048 (Clerical Error Act) RULE 108 (Cancellation or
correction of entries in the civil
registry)
Petition should be filed in the RTC where Petitions filed with the city or Verified petition filed in the RTC
the petitioner resides municipal civil registrar, or with where the corresponding Civil
consul general for citizens living Registry is located
abroad
Civil Registrar is not a party. Solicitor Civil Registrar is an indispensable
General to be notified by service of a copy party. If not made a party,
of petition. proceedings are null and void.
Reason: he is interested party in
protecting the integrity of public
documents. Solicitor General must
also be notified by service of a
copy of the petition.
Petition is filed by the person desiring to Verified petition in the form of By a person interested in any acts,
change his name affidavit is filed by any person event, order or decree
having direct and personal interest
in the correction
Involves change of name only Involves first name and nickname All cancellation or correction of
entries of: (see below grounds or
instances)
Involves substantial changes Involves clerical or typographical Substantial and adversary if
errors change affects the civil status,
citizenship or nationality of a
party; Summary if involves mere
clerical errors.
Grounds: Grounds: Grounds:
a) Name is ridiculous, dishonorable or a) First name or nickname is Cancellation or correction of
extremely difficult to write or found to be ridiculous, tainted entries of: (a) births; (b)
pronounce; with dishonor or extremely marriages; (c) deaths; (d) legal
b) Change is a legal consequence of difficult to write or pronounce; separation; (e) judgments or
legitimation or adoption; b) The first name or nickname annulments of marriage; (f)
c) Change will avoid confusion; has been habitually and judgments declaring marriages
d) One has continuously used and been continuous used by petitioner void from the beginning; (g)
known since childhood by a Filipino publicly known by that first legitimations; (h) adoptions; (i)
name and was unaware of alien name or nickname in the acknowledgments of natural
parentage; community; children; (j) naturalizations; (k)
e) Change is based on a sincere desire to c) Change will avoid confusion. election, loss or recovery of
adopt a Filipino name to erase signs of citizenship; (l) civil interdiction;
former alienage, all in good faith and (m) judicial determination of
without prejudice to anybody; and filiation; (n) voluntary
f) Surname causes embarrassment and emancipation of a minor; and (o)
there is no showing that the desired changes of name.
change of name was for a fraudulent
purpose, or that the change of name
would prejudice public interest.
Order for hearing to be published once a Petition shall be published at least Order shall also be published once
week for three consecutive weeks in a once a week for two consecutive a week for three consecutive
newspaper of general circulation in the weeks in a newspaper of general weeks in a newspaper of general
province. circulation. Also to be posted in a circulation in the province, and
conspicuous place for ten court shall cause reasonable
consecutive days. notice to persons named in the
petition.
Entry is correct but petitioner desires to Entry is incorrect. Cancellation or correction of
change the entry correct or incorrect entries
An appropriate adversary proceeding An appropriate administrative An appropriate summary or
proceeding. adversary proceeding depending
on effects
Requires judicial order Does not require judicial order. Directed or changed by the city or
municipal civil registrar or consul
general without judicial order
Service of judgment shall be upon the civil Transmittal of decision to civil Service of judgment shall be upon
register concerned registrar general the civil register concerned
Appeal may be availed of if judgment or In case denied by the city or Appeal may be availed of if
final order rendered affects substantial municipal civil registrar or the judgment or final order rendered
rights of person appealing. consul general, petitioner may affects substantial rights of
either appeal the decision to the person appealing, to the RTC or to
civil register general or file the CA.
appropriate petition with proper
court by petition for review under
Rule 43.
APPEALS IN SPECIAL PROCEEDING (RULE 109) 2) Petition for review. The appeal to the CA in cases
decided by the RTC in the exercise of its appellate
jurisdiction shall be by petition for review in
JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE accordance with Rule 42.
TAKEN
3) Petition for review on certiorari. In all cases where
An interested person may appeal in special proceedings only questions of law are raised or involved, the
from an order or judgment rendered by a Court of First appeal shall be to the SC by petition for review on
Instance or a Juvenile and Domestic Relations Court, where certiorari in accordance with Rule 45.
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
RULE ON ADVANCE DISTRIBUTION
which such person is entitled;
c) Allows or disallows, in whole or in part, any claim
Notwithstanding a pending controversy or appeal in
against the estate of a deceased person, or any
proceedings to settle the estate of a decedent, the court
claim presented on behalf of the estate in offset to
may, in its discretion and upon such terms as it may deem
a claim against it;
proper and just, permit that such part of the estate as may
d) Settles the account of an executor, administrator,
not be affected by the controversy or appeal be distributed
trustee or guardian;
among the heirs or legatees, upon compliance with the
e) Constitutes, in proceedings relating to the
conditions set forth in Rule 90 of these rules.
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 REVISED RULES ON SUMMARY PROCEDURE
administrator; and
f) Is the final order or judgment rendered in the
(MeTC, MTC and MCTC)
case, and affects the substantial rights of the
person appealing, unless it be an order granting or
CASES COVERED BY THE RULE
denying a motion for a new trial or for
reconsideration.
1) CIVIL CASES
a. All cases of forcible entry and unlawful
detainer irrespective of the amount of
WHEN TO APPEAL
damages or unpaid rentals sought to be
recovered.
Appeals in special proceedings necessitate a record on b. All other cases, except probate proceedings
appeal as the original record should remain with the trial where the total amount of the plaintiff‘s claim
court; hence the reglementary period of thirty (30) days is does not exceed P100,000 outside, or
provided for the perfection of appeals in special P200,000 in Metro Manila, exclusive of
proceedings. interest and costs.
MODES OF APPEAL 2) CRIMINAL CASES
a. Violation of Bouncing Checks Law (BP 22);
b. Violation of traffic laws, rules and regulations;
KATARUNGANG PAMBARANGAY (Secs. 399
c. Violations of rental laws;
422, LGC)
d. All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding 6 months or a
fine not exceeding P1,000 or both, SUBJECT MATTER FOR AMICABLE SETTLEMENT
irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability The lupon of each barangay shall have authority to bring
arising therefrom; and in offenses involving together the parties actually residing in the same
damages to property through criminal municipality or city for amicable settlement of all disputes
negligence, where the imposable fine does not
exceed P1,000. EXCEPT:
e. In offenses involving damage to property 1) Where one party is the government or any
through criminal negligence, where the subdivision or instrumentality thereof;
imposable fine does not exceed P10,000.00 2) Where one party is a public officer or employee,
and the dispute relates to the performance of his
Note: The Rule shall not apply in a civil case where the official functions;
cause of action is pleaded with another cause of action 3) Offenses punishable by imprisonment exceeding
subject to the ordinary procedure, nor to criminal case one (1) year or a fine exceeding P5,000;
where the offense charged is necessary related to 4) Offenses where there is no private offended party;
another criminal case subject to the ordinary 5) Where the dispute involves real properties located
procedure. in different cities or municipalities unless the
parties thereto agree to submit their differences to
EFFECT OF FAILURE TO ANSWER amicable settlement by an appropriate lupon;
Should the defendant fail to answer the complaint 6) Disputes involving parties who actually reside in
within 10 days from service of summons, the barangays of different cities or municipalities,
court shall MOTU PROPIO or ON MOTION of the except where such barangay units adjoin each
plaintiff, shall render judgment as may be other and the parties thereto agree to submit their
warranted by the facts alleged in the complaint differences to amicable settlement by an
and limited to what is prayed for therein. appropriate lupon;
7) Such other classes of disputes which the President
This is without prejudice to the applicability of may determine in the interest of justice or upon
Sec. 4, Rule 18 if there are two or more the recommendation of the Secretary of Justice;
defendants. 8) Any complaint by or against corporations,
partnerships, or juridical entities. The reason is
PRELIMINARY CONFERENCE AND APPEARANCES OF that only individuals shall be parties to barangay
PARTIES conciliation proceedings either as complainants or
respondents;
a preliminary conference shall be held not later 9) Disputes where urgent legal action is necessary to
than 30 days after the last answer is filed. The prevent injustice from being committed or further
rules on pre-trial in ordinary cases shall be continued, specially the following:
applicable to the preliminary conference unless a) A criminal case where the accused is
inconsistent with the provisions of the Rule. under police custody or detention;
The failure of the plaintiff to appear in the b) A petition for habeas corpus by a person
preliminary conference shall be cause for the illegally detained or deprived of his
dismissal of his complaint. The defendant who liberty or one acting in his behalf;
appears in the absence of the plaintiff shall be c) Actions coupled with provisional
entitled to judgment on his counterclaim. All remedies, such as preliminary injunction,
cross-claims shall be dismissed. attachment, replevin and support
If a sole defendant shall fail to appear, the plaintiff pendente litem;
shall be entitled to judgment as warranted by the d) Where the action may be barred by the
allegations in the complaint and limited to the statute of limitations;
reliefs prayed for therein. The Rule shall not apply 10) Labor disputes or controversies arising from
where one of two or more defendants sued under employer-employee relationship.
a common cause of action who had pleaded a 11) Where the dispute arises from the Comprehensive
common defenses shall appear at the preliminary Agrarian Reform Law;
conference. 12) Actions to annul judgment upon a compromise
which can be filed directly in court.
VENUE
SCOPE AND APPLICABILITY OF THE RULE
1) Disputes between persons actually residing in the
same barangay; This Rule shall govern the procedure in actions before the:
2) Those involving actual residents of different a) Metropolitan Trial Courts;
barangays within the same city or municipality; b) Municipal Trial Courts in Cities;
3) All disputes involving real property or any interest c) Municipal Trial Courts; and
therein where the real property or the larger portion d) Municipal Circuit Trial Courts
thereof is situated;
4) Those arising at the workplace where the contending for payment of money where the value of the claim
parties are employed or at the institution where such DOES NOT EXCEED P100,000.00 exclusive of interest
parties are enrolled for study, where such workplace and costs.
or institution is located.
Objections to venue shall be raised in the The MTCs shall apply this Rule in all actions which are:
mediation proceedings before the punong a) purely civil in nature where the claim or relief
barangay; otherwise, the same shall be deemed prayed for by the plaintiff is solely for payment or
waived. Any legal question which may confront reimbursement of sum of money; and
the punong barangay in resolving objections to b) the civil aspect of criminal actions, either filed
venue herein referred to may be submitted to the before the institution of the criminal action, or
Secretary of Justice, or his duly designated reserved upon the filing of the criminal action in
representative, whose ruling thereon shall be court, pursuant to Rule 111 of the Revised Rules of
binding. Criminal Procedure.
WHEN PARTIES MAY DIRECTLY GO TO COURT These claims or demands may be:
1) Where the accused is under detention; a) For money owed under any of the following:
2) Where a person has otherwise been deprived or 1. Contract of Lease;
personal liberty calling for habeas corpus 2. Contract of Loan;
proceedings; 3. Contract of Services;
3) Where actions are coupled with provisional 4. Contract of Sale; or
remedies such as preliminary injunction, 5. Contract of Mortgage;
attachment, delivery of personal property, and b) For damages arising from any of the
support pendente lite; and following:
4) Where the action may otherwise be barred by the 1. Fault or negligence;
statute of limitations. 2. Quasi-contract; or
3. Contract;
EXECUTION c) The enforcement of a barangay amicable
settlement or an arbitration award involving a
The amicable settlement or arbitration award may be money claim covered by this Rule pursuant to
enforced by execution by the lupon within six (6) months Sec. 417 of RA 7160.
from the date of the settlement. After the lapse of such
time, the settlement may be enforced by action in the COMMENCEMENT OF SMALL CLAIMS ACTION
appropriate city or municipal court.
A small claims action is commenced by filing with the court
REPUDIATION an:
1) accomplished and verified Statement of Claim in
Any party to the dispute may, within ten (10) days from duplicate;
the date of the settlement, repudiate the same by filing 2) a Certification of Non-forum Shopping;
with the lupon chairman a statement to that effect sworn 3) two (2) duly certified photocopies of the
to before him, where the consent is vitiated by fraud, actionable document/s subject of the claim;
violence, or intimidation. Such repudiation shall be 4) the affidavits of witnesses and other evidence to
sufficient basis for the issuance of the certification for support the claim.
filing a complaint before the court.
No evidence shall be allowed during the hearing which
was not attached to or submitted together with the
Claim, unless good cause is shown for the admission of
additional evidence. No formal pleading, other than
RULE OF PROCEDURE FOR SMALL CLAIMS CASES (AM
the Statement of Claim is necessary to initiate a small EFFECT OF FAILURE TO FILE RESPONSE
claims action.
Should the defendant fail to file his Response within the
RESPONSE required period, and likewise fail to appear at the date set
for hearing, the court shall render judgment on the same
The defendant shall file with the court and serve on the day, as may be warranted by the facts.
plaintiff a duly accomplished and verified Response within
a non-extendible period of ten (10) days from receipt of Should the defendant fail to file his Response within the
summons. The response shall be accompanied by certified required period but appears at the date set for hearing, the
photocopies of documents, as well as affidavits of court shall ascertain what defense he has to offer and
witnesses and other evidence in support thereof. No proceed to hear, mediate or adjudicate the case on the
evidence shall be allowed during the hearing which was same day as if a Response has been filed.
not attached to or submitted together with the Response,
unless good cause is shown for the admission of additional PROHIBITED PLEADINGS AND MOTIONS
evidence. The grounds for the dismissal of the claim, under
Rule 16 of the Rules of Court, should be pleaded.
Failure of both parties to appear shall cause the dismissal SCOPE AND APPLICABILITY OF THE RULE
with prejudice of both the claim and counterclaim.
These Rules shall govern the procedure in civil, criminal
HEARING; DUTY OF THE JUDGE and special civil actions before the RTCs and MTCs
involving enforcement or violations of environmental and The judge shall put the parties and their counsels
other related laws, rules and regulations. under oath, and they shall remain under oath in all
pre-trial conferences.
CIVIL PROCEDURE The judge shall exert best efforts to persuade the
parties to arrive at a settlement of the dispute. The
judge may issue a consent decree approving the
PROHIBITION AGAINST TEMPORARY RESTRAINING agreement between the parties in accordance with
ORDER AND PRELIMINARY INJUNCTION law, morals, public order and public policy to protect
the right of the people to a balanced and healthful
Except the Supreme Court, no court can issue a TRO or ecology.
writ of preliminary injunction against lawful actions of Evidence not presented during the pre-trial, except
government agencies that enforce environmental laws or newly discovered evidence, shall be deemed waived.
prevent violations thereof except the Supreme Court. CONSENT DECREE refers to a judicially-approved
settlement between concerned parties based on public
PRE-TRIAL CONFERENCE; CONSENT DECREE (SEC. 5, interest aspect in environmental cases and encourages
RULE 3) the parties to expedite the resolution of litigation.
PERMANENT ENVIRONMENTAL PROTECTION ORDER In a case is a SLAPP the defendant may file an answer
interposing as a defense that the case is a SLAPP. The
The court may convert the TEPO to a permanent EPO or hearing on the defense of a SLAPP shall be summary in
issue a writ of continuing mandamus directing the nature. The party filing the action assailed as a SLAPP shall
performance of acts which shall be effective until the prove by preponderance of evidence that the action is not
judgment is fully satisfied. a SLAPP and is a valid claim.
The court may, by itself or through the appropriate The defense of a SLAPP shall be resolved within thirty (30)
government agency, monitor the execution of the days after the summary hearing. If the court dismisses the
judgment and require the party concerned to submit action, the court may award damages, attorney‘s fees and
written reports on a quarterly basis or sooner as may be costs of suit under a counterclaim if such has been filed.
necessary, detailing the progress of the execution and The dismissal shall be with prejudice. If the court rejects
satisfaction of the judgment. The other party may, at its the defense of a SLAPP, the evidence adduced during the
option, submit its comments or observations on the summary hearing shall be treated as evidence of the
execution of the judgment. parties on the merits of the case. Since a motion to dismiss
is a prohibited pleading, SLAPP as an affirmative defense
should be raised in an answer along with other defenses
WRIT OF CONTINUING MANDAMUS
that may be raised in the case alleged to be a SLAPP.
a) Motion to dismiss;
b) Motion for extension of time to file return;
c) Motion for postponement;
d) Motion for a bill of particulars;
e) Counterclaim or cross-claim;
f) Third-party complaint;
g) Reply; and
h) Motion to declare respondent in default.
of Appeals or the Supreme Court. The petitioner shall be
DISCOVERY MEASURES exempt from the payment of docket fees.
A party may file a verified motion for the following reliefs: If warranted, the court shall grant the privilege of the writ
a) Ocular Inspection - the court may order any of continuing mandamus requiring respondent to perform
person in possession or control of a an act or series of acts until the judgment is fully satisfied
designated land or other property to permit and to grant such other reliefs as may be warranted
entry for the purpose of inspecting or resulting from the wrongful or illegal acts of the
photographing the property or any relevant respondent. Upon full satisfaction of the judgment, a final
object or operation thereon. return of the writ shall be made to the court by the
b) Production or inspection of documents or respondent. If the court finds that the judgment has been
things - the court may order any person in fully implemented, the satisfaction of judgment shall be
possession, custody or control of any entered in the court docket.
designated documents, papers, books,
accounts, letters, photographs, objects or The issuance of a TEPO is made available as an auxillary
tangible things, or objects in digitized or remedy prior to the issuance of the writ itself. As a special
electronic form, which constitute or contain civil action, the WoCMa may be availed of to compel the
evidence relevant to the petition or the return, performance of an act specifically enjoined by law. Its
to produce and permit their inspection, availability as a special civil action likewise complements
copying or photographing by or on behalf of its role as a final relief in environmental civil cases and in
the movant. the WOK, where continuing mandamus may likewise be
issued should the facts merit such relief.
WRIT OF CONTINUING MANDAMUS
A writ issued by a court in an environmental case directing WRIT OF CONTINUING MANDAMUS VS. WRIT OF
any agency or instrumentality of the government or officer KALIKASAN
thereof to perform an act or series of acts decreed by final
judgment which shall remain effective until judgment is Subject matter. WoCMa is directed against the unlawful
fully satisfied. The petition shall contain a sworn neglect in the performance of an act which the law
certification of non-forum shopping. specifically enjoins as a duty resulting from an office, trust
or station in connection with the enforcement or violation
1) GROUNDS FOR CONTINUING MANDAMUS of an environmental law rule or regulation or a right
a) When any agency or instrumentality of the therein; or (a) the unlawful exclusion of another from the
government or officer thereof unlawfully use or enjoyment of such right and in both instances, there
neglects the performance of an act which the is no other plain, speedy and adequate remedy in the
law specifically enjoins as a duty resulting from ordinary course of law. A writ of kalikasan is available
an office, trust or station in connection with the against unlawful act or omission of a public official or
enforcement or violation of an environmental employee, or private individual or entity, involving
law rule or regulation or a right therein; environmental damage of such magnitude as to prejudice
b) When any agency or instrumentality of the the life, health or property of inhabitants in two or more
government or officer thereof unlawfully cities or provinces. In addition, magnitude of
excludes another from the use or enjoyment of environmental damage is a condition sine qua non in a
such right. petition for the issuance of a writ of kalikasan and must be
contained in the verified petition.
2) REQUISITES CONTINUING MANDAMUS
a) There must be a clear legal right or duty; Who may file. A writ of continuing mandamus is available
b) The act to be performed must be practical; to a broad range of persons such as natural or juridical
c) Respondent must be exercising a ministerial person, entity authorized by law, people‘s organization,
duty; NGO, or any public interest group accredited by or
d) The duty or act to be performed must be in registered with any government agency, on behalf of
connection with the enforcement or violation persons whose right to a balanced and healthful ecology is
of an environmental law, rule or regulation or violated or threatened to be violated.
a right; and
e) There is no other plain, speedy, and adequate Respondent. The respondent in a petition for continuing
remedy in the ordinary course of law. mandamus is only the government or its officers, unlike in
a petition for writ of kalikasan, where the respondent may
be a private individual or entity.
The petition shall be filed with the Regional Trial Court
exercising jurisdiction over the territory where the Exemption from docket fees. The application for either
actionable neglect or omission occurred or with the Court petition is exempted from the payment of docket fees.
Venue. A petition for the issuance of a writ of continuing
mandamus may be filed in the following: (a) the RTC
exercising jurisdiction over the territory where the
actionable neglect or omission occurred; (b) the CA; or (c)
the SC. Given the magnitude of the damage, the application
for the issuance of a writ of kalikasan can only be filed with
the SC or any station of the CA.