REMEDIAL LAW A.

SETTLEMENT OF ESTATE OF
DECEASED PERSONS, VENUE AND
VI. SPECIAL PROCEEDINGS PROCESS

Distinction between civil action and special Modes of Settlement

proceedings
Civil Action refers to an action by which a party
sues another for enforcement or protection of a
right, or prevention or redress of a wrong.
Special Proceeding refers to the remedy by
which a party seeks to establish a status, right,
or a particular fact. (ESROF)
Enumeration of Special Proceedings in R72, S1
is not exclusive. Special proceedings excluded
in Rule 72 includes, but not limited to the
following: (FLACH)
(a) Summary proceeding under the Family
Code;
(b) Liquidation
(c) Writ of Amparo
(d) Corporate Rehabilitation
(e) Writ of Habeas Data
Special proceedings is initially non-
adversarial in nature because there may be
oppositors to the petition in the course of the
proceedings.
1. Extrajudicial – no will, no debts
a. Only one heir – affidavit of self-
adjudication
b. Heirs are all of age or minors are
represented, and all agree – deed of
extrajudicial settlement (R74, S1)
2. Judicial
a. No will, no debts, more than one heir,
and disagreement of heirs – partition
(R69)
b. Summary settlement of estates of
small value (R72, S2)
c. Petition for letters of administration
(R79)
d. Probate of wills through letters
testamentary or letters of
administration with or without the
will annexed (if no named executor)
(R75-90)
Jurisdiction over matters of probate depends
upon the GROSS VALUE of the estate of the
decedent. (B.P. No. 129 as amended by R.A. 7691;
Lim v. CA, G.R. No. 124715, 24 January 2000,
Buena)

Certification of non-forum shopping is P300,000 or

Property is MTC
required in special proceedings. Special less
outside
provisions under Part II of the Rules of Court More than
Metro Manila RTC
govern special proceedings; but in the absence P300,000
of provisions, the rules provided for in Part I of P400,000 or
Property is MTC
the Rules governing ordinary civil actions shall less
within Metro
be applicable to special proceedings, as far as More than
Manila RTC
practicable. (Sheker v. Estate of Alice Sheker, G.R. P400,000
No. 157912, 13 December 2007, Austria-Martinez,
J.) Venue in the judicial settlement of estates

Special proceedings are not always summary Venue is determined by not by citizenship but
even though formal pleadings and a hearing based on the following (R73, S1):
may be dispensed with. Rule 108 on the
cancellation or correction of entries in the civil Resident Court of the
registry is not a summary proceeding per se. province where the
(Republic v. Olaybar, G.R. No. 189538, 10 February decedent resided at
2014, Peralta, J.) the time of death
Non-resident Court of any
Petition for recognition of foreign judgment province where
seeks to establish a status, right, or a particular decedent had estate
fact. In one case, the petitioner filed an action
under Rule 108 to cancel the entry of marriage Residence refers to the actual or physical
on the basis of the decree of the Japanese Family residence, as distinguished from legal residence
Court. (Fujiki v. Marinay, G.R. No. 196049, 26 or domicile.
June 2013, Carpio, J.)
Court first taking cognizance of settlement of
estate of a decedent shall exercise jurisdiction
to the exclusion of all other courts subject to
1 2020 BAR EXAMS #BESTBAREVER
preferential jurisdiction of court where testate 4. When the estate consists of only one
proceedings are filed. property. (Portugal v. Portugal-Beltran,
G.R. No. 155555, 16 August 2005, Carpio-
Venue may be assailed only (1) when the Morales, J.)
estate proceedings are brought up on appeal or
(2) if it was improperly laid based on records. The probate court may pass upon the issue of
However, the fact that the estate proceedings ownership with finality where interested
are initiated neither in the decedent’s residence parties are the heirs who have all appeared in
nor where the decedent’s estate is located is not the proceeding and the rights of the third parties
jurisdictional and may be waived if not raised. are not impaired. (Munsayac-De Villa v. CA, G.R.
(Uriarte v. Court of First Instance, G.R. No. L- No. 148597, 24 October, 2004, Panganiban, J.)
21938-39, 29 May 1970, Dizon, J.)
Jurisdictional facts refer to the fact of death of
A motion to dismiss on improper venue may the decedent, his residence at the time of his
be filed only if it is apparent on the face of the death in the province where the court is sitting,
Petition, otherwise, the improper venue may or he is an inhabitant of a foreign country, the
only be questioned in an appeal from the court estate he left in such province. (Palaganas v.
in original case. Palaganas, G.R. No. 169144, 26 January 2011,
Abad, J.)
A probate court acting as such exercises
limited jurisdiction. The said court is primarily Presumption of death
concerned with the administration, liquidation, For purposes of settlement of estate, a person
and distribution of the estate. In fact, the main shall be presumed dead if absent and unheard
function of a probate court is to settle and of for the periods fixed in the Civil Code. If the
liquidate the estate of the deceased either absentee turns out to be alive, he/she shall be
summarily or through the process of entitled to the balance of his estate after
administration. (Uy v. CA, G.R. No. 167979, 15 payment of all his debts. The balance may be
March 2006, Ynares-Santiago, J.) recovered by motion in the same proceeding.
(R73, S4)
Probate court has the authority to: (HDA)
Civil Code on presumption of death:
1. Determine heirs;
2. Make a just and legal distribution of the Presumed dead for all Absence of
estate (Solivio v. CA, G.R. No. 83484, 12 purposes except 7 years
February 1990, Medialdea, J.); and succession (Art. 390)
3. Appointment and removal of Presumed dead for Missing
administrators, executors, guardians, purposes of settling his for 10
and trustees. (Ramos v. CA, G.R. No. estate (Art. 390) years
42108, 29 December 1989, Regalado, J.)
Exception: If the absentee 5 years
Generally, a probate court cannot adjudicate disappeared after the age
or determine title to properties claimed to be a of 75 years.
part of the estate and which are claimed to Considered absent even Absent for
belong to outside parties. (Ignacio v. Reyes, G.R. for the purpose of opening 4 years
No. 213192, 12 July 2017, Peralta, J.) succession: (Art. 391)
1. On board a lost
Except: vessel or missing
1. In a provisional manner to determine airplane;
whether said property should be
2. In the armed forces
included or excluded in the inventory,
who has taken part in
without prejudice to final determination
war; or
of title in a separate action. (Cuizon v.
3. In danger of death.
Ramolete, G.R. No. L-51291, 29 May 1984,
Gutierrez, Jr., J.)
B. SUMMARY SETTLEMENT OF
2. With consent of all the parties, without
ESTATES
prejudice to the rights of third persons.
(Trinidad v. CA, G.R. No. 75579, 30
Requisites of Extrajudicial Settlement of
September 1991, Paras, J.)
Estates (InteND PuPiL Bond)
3. If the question is one of collation or
advancement. (Coca v. Borromeo, G.R. No. 1. Decedent dies intestate.
L-29545, 31 January 1978, Aquino, J.)

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 2. No outstanding debts at the time of
settlement.
Note: Presumption of no debts left
if no creditor filed petition for
letters administration within 2
years from death of decedent.
Affidavit of self-adjudication by sole heir
Adjudication by an heir of the decedent’s entire
estate to himself by means of an affidavit is
allowed only if he is the sole heir to the estate
(Delgado vda. de De la Rosa vs. Heirs of Marciana
Rustia vda. de Damian, G.R. No. 155733, 27
January 2006, Corona, J.)

3. Heirs all of legal age or minors Summary settlement of estates of small value,
represented by judicial guardians or when allowed
legal representatives.
Summary
4. Settlement made in public instrument Extrajudicial Settlement of
duly filed with Register of Deeds. Settlement Estates of Small
Value
Note: Lack of registration does not No court Judicial
affect its validity when there are intervention adjudication
creditors or rights of creditors are although summary
not involved. (Vda. De Reyes v. CA, Value of estate, Applies only where
G.R. No. 92436, 26 July 1991, immaterial gross value is not
Davide, Jr., J.) more than
P10,000.00
5. Publication in newspaper of general Allowed only in Allowed in both
circulation in the province once a week intestate succession intestate and testate
for 3 consecutive weeks. succession
No outstanding Debt is immaterial
Note: Despite its publication, debts at the time of
extrajudicial settlement is not settlement
binding to any person who has
not participated therein or who Reconveyance is the remedy of non-
had notice thereof. (R74, S1, last participating aggrieved parties after
paragraph) extrajudicial settlement of estates
The remedy of an heir who did not participate
6. Bond equivalent to the value of personal in or had no knowledge of the extrajudicial
property posted with Register of Deeds. partition is to file an action for reconveyance.
Prescriptive period for non-participants is 10
Note: Bond is required only when years, because an action for reconveyance based
personal property is involved. on implied or constructive trust, being an
Real estate is subject to lien in obligation created by law, prescribes in 10 years.
favor of creditors, heirs, or other (Art. 1144, par. 2, Civil Code)
persons.
Note: The ruling in Gerona v. De Guzman,
When heirs disagreed to enter into an cited in Pedrosa v. CA, that prescriptive
extrajudicial settlement of estate may instead period for non-participants is 4 years
choose to file an ordinary action for partition. from discovery of fraud, i.e., when deed
was filed with Register of Deeds and new
If there is only one heir, settlement of estate title issued, is not applicable, because
may be made through an affidavit of self- the same was based on the old Code of
adjudication. Civil Procedure. The Gerona doctrine
was abandoned in Amerol v. Bagumbaran
Two-year prescriptive period to annul a deed and reiterated in Caro v. CA and Marquez
of extrajudicial settlement v. CA.
Any person who participated or has taken part
or had notice of the extrajudicial partition and An action for reconvenyance based on fraud is
claims that he/she is unduly deprived of his imprescriptible
lawful participation in the estate, he/she may When plaintiff-legal owner and not the
file an annulment of a deed of extrajudicial defendant-registered owner is in possession of
settlement within two years from the settlement the land to be reconveyed, the action for
and distribution of an estate. (Pedrosa vs. CA, reconveyance when based on fraud,
G.R. No. 118680, 05 March 2001, Quisumbing, J.). is imprescriptible as long as the land has not
passed to an innocent purchaser for value.
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(Heirs of Saludares v. CA, G.R. No. 128254, 16
January 2004, Corona, J.)
C. PRODUCTION AND PROBATE OF
WILL
General Rule: Authority of the probate court is
limited to the extrinsic validity of the will:
(IDC)
1. Identity – whether or not the instrument
ionwhich is offered for probate is the last
will and testament of the decedent;
2. Due execution – whether or not the will
has been executed in accordance with the
formalities prescribed by law.
3. Capacity – whether the testator had
testamentary capacity at the time of the
execution of the will.
Exceptions: (PPA)
1. Prima facie – Where question on
intrinsic validity is apparent on face of
will. (Maninang v. CA, G.R. No L-57848,
19 June 1982, Melencio-Herrera, J.)
2. Practical – Because practical
considerations demanded as when there
is preterition of heirs or the testamentary
provisions are of doubtful legality.
Note: The Court ruled that the will
was intrinsically invalid as it
completely preterited the parents
of the testator. (Nuguid v. Nuguid,
G.R. No. L-23445, 23 June 1966,
Sanchez, J.)
3. Agreement – Where parties agree that
the intrinsic validity be first determined,
the probate court may also do so. (Reyes
v. CA, G.R. No. 12099, 30 October 1997,
Torres, Jr., J.)
Allowance of will is conclusive as to its due
execution
The authority of the probate court is limited to
ascertaining whether the testator, being of
sound mind, freely executed the will in
accordance with the formalities prescribed by
law. The allowance of the will is conclusive only
as to its due execution. Thus, the claim of title to
the properties forming part of the testator’s
estate should be settled in an ordinary action
before the regular courts. (Nittscher v. Nittscher,
G.R. No. 160530, 20 November 2007, Quisumbing,
J.)
Appeal is the remedy against allowance of a
will. (Art. 838, par. 4, Civil Code)
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Probate of will to establish its validity is
mandatory
1. Unless will is probated and notice given
to the whole world, right of a person to
dispose of his property by will may be
rendered nugatory. (Maninang v. CA,
supra.)
2. The Deed of Donation which is one of
mortis causa, not having followed the
formalities of a will, is void and
transmitted no right. And even assuming
that the formalities were observed, since
it was not probated, no right will be
transmitted. (Aluad v. Aluad, G.R. No.
176943, 17 October 2008, Carpio Morales, J.)
3. In intestate succession, there is no valid
partition among heirs until after will has
been probated. (Ralla vs. Judge Untalan,
G.R. Nos. L-63253-54, 27 April 1989,
Sarmiento, J.)
4. Presentation of will cannot be dispensed
with on the ground of estoppel because
public policy requires that a will should
be probated. (Fernandez vs. Dimagiba,
G.R. No. L-23638, 12 October 1967, Reyes,
J.B.L., Actg. C.J.)
D. ALLOWANCE OR DISALLOWANCE
OF WILL
Who may petition for the allowance of will
1. Executor
2. Legatee or devisee, who need not be a
relative of decedent
3. Other interested person (i.e., heir,
creditor)
4. Testator himself during his lifetime
Allowance of will may be done at any time
after death of testator not subject by the statute
of limitations and does not prescribe, since it is
required by public policy.
Jurisdiction how acquired
a. Attaching of mere copy of will sufficient
annexing of original of will to the petition
is not jurisdictional requirement.
b. Delivery of will sufficient even if no
petition filed under R76, S3. When a will
is delivered to the court, the court
could motu proprio take steps to fix time
and place for proving the will and issue
corresponding notices.
Contents of petition for allowance of will (R76,
S2)
 1. Jurisdictional facts:
a. That a person has died leaving a
will; and
b. That the testator at the time of
death is a resident within the
territorial jurisdiction of the court;
or the testator is a non-resident at
the time of death but left property
within the territorial jurisdiction
of the court.
2. Names, ages and residences of the heirs,
legatees, and devisees of the testator or
decedent.
3. Probable value and character of the
property of the estate.
4. Name of the person whom letters are
prayed for.
5. If the will has not been delivered to the
court, the name of the person having
custody thereof.
Notice and hearing; publication
1. After will delivered to or petition for
allowance of will filed in court having
jurisdiction thereto, the court shall:
a. Fix the time and place for proving
will when all concerned may
appear to contest such allowance;
b. Cause notice of such time in place
to be published 3 successive
weeks in a newspaper of general
circulation in the province; and
2. Newspaper publication is not mandatory
where the testator himself files the
petition for probate of the will.
Probate of will is in rem
Notice by publication is a pre-requisite to
allowance of will, which is a constructive notice
to the whole world. When probate is granted,
the judgment is binding upon everybody, even
against the state.
Only known heirs, legatees, and devisees
entitled to personal notice (R76, S4)
Note: Notice to designated heirs, legatees,
and devisees is jurisdictional when they
are known and their places of residence
are known (De Arranz vs. Galing, 161
SCRA 628).
If testator asks for allowance of his own will,
notice shall be sent only to his compulsory heirs
(Alaban v. CA, G.R. No. 156021, 23 September
2005, Tinga, J.). Compulsory heirs are those for
whom the law has reserved a portion of the
testator’s estate.
Substantial Compliance Rule
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If will is executed in substantial compliance
with the formalities of law, and possibility of
bad faith is removed and should be admitted to
probate. (De Jesus vs. De Jesus, G.R. No. L-38338,
28 January 1985, Gutierrez, Jr., J.)
Grounds for disallowing will (R76, S9)
FIDU-SM
1. Formalities required by law have not
been complied with;
2. Testator was insane, or otherwise
mentally incapable of making a will at
the time of its execution;
3. Will was executed through force or
under duress, or the influence of fear, or
threats;
4. Will was procured by undue and
improper pressure and influence on the
part of the beneficiary or some other
person;
5. Signature of the testator was procured
by fraud; and
6. Testator acted by mistake or did not
intend that the instrument he signed
should be his will at the time of affixing
his signature thereto. (Art. 389, Civil
Code)
Ground for disallowance, exclusive
The grounds for disallowance of will provided
under R76, S9 and Art. 389 of the Civil Code are
exclusive and no other grounds can serve to
disallow a will. (Sps. Ajero v. CA, G.R. No.
106720, 15 September 1994, Puno, J.)
Note: If testator fails to sign and date
some dispositions in holographic will, it
affects only the validity of the
dispositions, but not the whole will. (Sps.
Ajero v. CA, supra.)
Separate wills may be probated jointly. (Vda.
de Perez v. Tolete, G.R. No. 76714, 02 June 1994,
Quiason, J.)
Reprobate of will
While foreign laws do not prove themselves in
our jurisdiction and our courts are not
authorized to take judicial notice of them;
however, the administrator of an estate is duty-
bound to introduce in evidence the pertinent
foreign law initially applied to the probate of
the will. (Ancheta v. Guersey-Dalaygon, G.R. No.
139868, 08 June 2006, Austria-Martinez, J.)
Evidence necessary for reprobate of will or
will probated outside the Philippines:
1. Due execution of will in accordance with
foreign laws;
2. Testator has domicile in foreign country
and not the Philippines;
 3. Will has been admitted to probate in such 3. In the court’s opinion, unfit to execute
country; the duties of the trust by reason of: CWID
4. Fact that foreign court is a probate court; a. Drunkenness;
5. Law of the foreign country on procedure b. Incompetence;
and allowance of wills (Vda. de Perez v. c. Want of understanding or
Tolete, supra) integrity; or
d. Conviction of offense involving
Publication and notice required in reprobate moral turpitude (anything done
of will contrary to justice, honesty, good
Compliance with Secs. 3 and 4 of Rule 76, re morals).
publication and notice by mail or personally to
known heirs, legatees and devisees of testator
resident in the Philippines and to executor, if he Conflict of interest; ground of incompetency
is not the petitioner, required also in wills for Courts may refuse to appoint a person as
reprobate. (Vda. de Perez v. Tolete, supra.) executor or administrator on ground of
unsuitableness adverse interest or hostile to
Effect of reprobate (R77, S3) those immediately interested in the estate. (Lim
When the will is allowed, it shall have the same vs. Diaz-Maillares, G.R. No. L-17633, 19 October
effect as if originally proved and allowed in 1966, Regala, J.)
such court.
Failure to file an income tax return is not a
The letters testamentary or of administration crime involving moral turpitude because the
granted shall extend to all of the testator’s mere omission is already a violation regardless
estate in the Philippines. After payment of just of the fraudulent intent or willfulness of the
debts and expenses of administration, the estate individual. (Republic vs. Marcos, G.R. No. 130371,
shall be disposed of according to such will, as 04 August 2009, Del Castillo, J.)
far as such will may operate upon it. (R77, S4)
Letters testamentary and letters of
E. LETTERS TESTAMENTARY AND OF administration; when issued
ADMINISTRATION
Letters 1. There is a valid will;
Petition for letters of administration is the testamentary 2. An executor is named
initiatory pleading in probate proceedings if the in the will;
person dies intestate. 3. The executor is
competent, accepts
Executor is the Administrator is trust, and gives bond.
person named in the person, who Letters The executor named in
the will to may be a stranger testamentary the will is either
administer the or creditor of with will incompetent, refuses the
decedent’s estate decedent, annexed trust, or failed to give
and carry out the appointed by the bond.
provisions thereof. court to administer Letters of 1. No executor named
the estate where the administration in the will.
decedent died 2. Intestate succession.
intestate, or where 3. Will is void or
the will was void annulled.
and not allowed to
probate, or where Order of preference in appointment of
no executor was administrator (R78, S6)
named in the will 1. Surviving spouse
or the executor 2. Next of kin
named therein is 3. Surviving spouse and next of kin
incompetent, 4. Person who the surviving spouse or next
refuses the trust, or of kin requests to have appointed
fails to give a bond. 5. Principal creditor/s if the above neglect
(BIRNI) for 30 days after the person’s death to
apply for administration or to request
The following are incompetent to serve as that administration be granted to some
executor or administrator: MNC other person.
1. Minor
2. Non-resident
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 6. Person as the court may select, if not
principal creditor competent and willing
to serve.
Meaning of next of kin
On the matter of appointment of administrator
of the estate of the deceased, the surviving
spouse is preferred over the next of kin of the
decedent. When the law speaks of next of kin,
the reference is to those who are entitled, under
the statute of distribution, to the decedents
property; one whose relationship is such that
he is entitled to share in the estate as
distributed, or, in short, an heir. In resolving,
therefore, the issue of whether an applicant for
letters of administration is a next of kin or an
heir of the decedent, the probate court perforce
has to determine and pass upon the issue
of filiation. A separate action will only result in
a multiplicity of suits. (Angeles v. Maglaya, G.R.
No. 153798, 02 September 2005, Garcia, J.)
Order of preference does not apply to
appointment of special administrator
The appointment of a special administrator lies
entirely at the discretion of the court, and is not
appealable. Not being appealable, the only
remedy against the appointment of a special
administrator is Certiorari under Rule 65 of the
Rules of Court. (Tan v. Gedorio, Jr., G.R. No.
166520, 14 March 2008, Chico-Nazario, J.)
Court may reject order of preference
While surviving spouse is entitled to preference
in the appointment, circumstances might
warrant his rejection and appointment of
someone else, at the discretion of the court.
Interest in estate as principal consideration
In the appointment of an administrator, the
principal consideration is the interest in the
estate of the one to be appointed. Those who
will reap benefit of a wise, speedy, and
economical administration or will suffer
consequences of waste, improvidence, or
mismanagement have the highest interest and
most influential motive to administer estate
correctly. (Gonzales vs. Aguinaldo, G.R. No.
74769, 28 September 1990, Padilla, J.)
Opposition to issuance of letters testamentary and
simultaneous petition for administration (R79, S1)
Any person interested in a will may oppose in
writing the issuance of letters testamentary to
persons named as executors and at the same
time file petition for letters of administration
with will annexed.
Note: Interested person refers to one who
would be benefited by the estate (i.e.,
heir, legatee, devisee) or one who has
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a claim against the estate (i.e., creditor).
Interest must be material and direct; not
merely indirect or contingent. (Sagunsin
v. Lindayag, G.R. No. L-17759, 17 December
1962, Dizon, J.; San Luis vs. San Luis, G.R.
No. 133743, 06 February 2007, Ynares-
Santiago, J.)
Powers and duties of executors and
administrators ; restrictions on their powers
1. Powers
a. Possess and manage estate of the
deceased to pay debts and
expenses of administration (R84,
S2);
b. Executor or administrator of
estate of a deceased partner have
access to, examine and take copies
of, books and papers relating to
the partnership business, and
examine and make invoices of the
property belonging to such
partnership; and
c. With the approval of the court, to
compound or compromise with a
debtor of the deceased. (R87, S4)
2. Duties
a. Maintain the estate in tenantable
repair; and
b. Deliver the same to the heirs or
devisees when directed by the
court. (Rule 84, Sec. 3)
Limitation in the delivery of estate
The administrator may only deliver properties
of the estate to the heirs after payment of the
debts, funeral charges, and other expenses
against the estate, except when authorized by the
court. (Silverio, Jr. v. CA, G.R. No. 178933, 16
September 2009, Velasco, Jr., J.)
F. CLAIMS AGAINST THE ESTATE
Notice to creditors
Immediately after granting the letters
testamentary or of administration, the court
shall issue a notice requiring all persons having
money claims against the estate and file the
same in the office of the clerk of court. N-MC-F
Time within which claims shall be filed;
exception
Time for Not more than 12
filing claims months neither less
than 6 months after date
of first publication of the
notice.
New period At any time before order
allowed of distribution is entered,
 creditor who failed to file
his claim within the time
set may move to be
allowed to file such claim
within a period not
exceeding one month.
Note: The 1-month
period shall
commence from the
date of the order of
the court allowing
the filing of claims.
(Barredo v. CA, G.R.
No. L-17863, 28
November 1962, Reyes,
J.B.L.)
Statute of Non-Claims (SNC)
1. Period fixed by probate court must not
be less than 6 months nor more than 12
months from the date of first
publication of the notice.
2. Such period once fixed by the court is
mandatory it cannot be shortened.
3. SNC supersedes statute of limitations
even if claim has not yet prescribed, it
may be barred by SNC.
Spirit of our probate law
Speedy settlement of the estate of deceased
persons for the benefit of creditors and those
entitled to the residue by way of inheritance or
legacy after the debts and expenses of
administration have been paid. (Sikat v.
Villanueva, G.R. No. 35925, 10 November 1932,
Villareal, J.)
Publication of notice to creditors
Immediately after notice to creditors is issued,
executor or administrator shall cause:
1. Publication of said notice 3 weeks
successively in newspaper of general
circulation in the province; and
2. Posting for the same period in
a. 4 public places in the province and
b. 2 public places in the municipality
where decedent last resided.
Publication of notice to creditors, constructive
notice to the whole world
The creditor cannot be permitted to file his
claim beyond the period fixed in the notice on
the ground that he had no knowledge of the
administration proceedings. (Villanueva vs.
PNB, G.R. No. L-18403, 30 September 1961,
Paredes, J.)
Claims that must be filed
1. Those arising from contract, whether due
or not due;
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Note: When the action is for
recovery of money arising from
contract, and defendant dies
before entry of final judgment, it
shall not be dismissed but shall be
allowed to continue until entry of
final judgment. A favorable
judgment obtained by plaintiff
shall be enforced under Rule 86.
R3, S20
2. Funeral expenses and expenses for last
sickness of the decedent;
3. Judgment money against decedent
Money claims against a deceased debtor
1. Section 5 of Rule 86 of the Rules of Court
expressly allows the prosecution of
money claims arising from a contract
against the estate of a deceased debtor.
Those claims are not actually
extinguished. What is extinguished is
only the obligee’s action or suit filed
before the court, which is not then
acting as a probate court.
In one case, the monetary liabilities
were transmissible by their nature, by
stipulation, or by provision of law.
Hence, the death of the decedent did not
result in the extinguishment of those
obligations or liabilities, which merely
passed on to his estate. Death is not a
defense that an estate can set up to wipe
out the obligations under the
performance bond. (Stronghold
Insurance Company, Inc. vs. Republic-
Asahi Glass Corporation, G.R. No. 147561,
June, 2006)
2. Monetary claims governed by R3, S20 in
relation to R86, S5 must be filed against
the estate of petitioner Melencio
Gabriel. (Gabriel v. Bilon, G.R. No.
146989, 07 February 2007, Acuna, J.)
3. Money claims against the estate must be
filed within the time limited in the
notice, otherwise they are barred
forever.
Exception may be set forth as
counterclaims in any action
executor or administrator may
bring against the claimants.
4. A money claim is only an incidental
matter in the main action for the
 settlement of the decedent's estate;
more so if the claim is contingent since
the claimant cannot even institute a
separate action for a mere contingent
claim. Hence, contingent money claim,
not being an initiatory pleading, does
not require a certification against non-
forum shopping. (Sheker v. Estate of
Alice Sheker, G.R. No. 157912, 13
December 2007, Austria-Martinez, J.)
Mandamus not available
Immediate payment of claim by the
administrator is not a matter of right. (Echaus v.
Blanco, G.R. No. L-30453, 04 December 1989,
Medialdea, J.)
Judgment, appealable
Judgment of the court approving or
disapproving a claim is appealable as in
ordinary actions. (R86, S13)
Claim of executor or administrator against the
estate (R86, S8)
1. If the executor or administrator has a
claim against the estate he represents;
2. He shall give notice thereof, in writing,
to the court;
3. He court shall appoint a special
administrator; and
4. The special administrator shall, in the
adjustment of such claim, have the same
power and be subject to the same
liability as the general administrator or
executor in the settlement of the estate.
Note: The ruling on the extent of the
Special Administrator’s commission
against the estate is the lower court’s last
word on the matter and one that is
appealable. (Briones v. Henson-Cruz, G.R.
No. 159130, 22 August 2008, Brion, J.)
G. ACTIONS BY AND AGAINST
EXECUTORS AND
ADMINISTRATORS
Actions against executors and administrators
RIL
1. Actions to recover real or personal
property from the estate;
2. Actions to enforce a lien on real or
personal property; and
3. Actions to recover damages for an injury
to person or property.
When heirs may file action in court
General rule: heirs have no legal standing to
sue for recovery or protection of property rights
of the deceased.
9
Exceptions:
1. While pending the filing of
administration proceedings under
Art. 777 of the Civil Code (when
rights to succession are transmitted
from the moment of death of the
decedent).
2. Administration proceedings have
already been commenced but
administrator has not yet been
appointed.
3. When letters testamentary or of
administration have not yet been
issued.
4. Executor or administrator is
unwilling or refuses to bring suit.
5. Administrator is alleged to have
participated in the act complained of
and he is made a party defendant.
Double value rule
If before grant of letters testamentary or of
administration, a person embezzles or alienates
money or property of the deceased liable to an
action in favor of executor/administrator for
double the value of the property sold,
embezzled or alienated.
When creditor may bring action
1. When there is deficiency of assets;
2. When the deceased in his lifetime had
made or attempted such a conveyance
(with intent to defraud creditors or to
avoid any right, debt or duty); and
3. Executor or administrator has not
commenced the action.
Commencement and prosecution to final
judgment by a creditor
Any creditor of the estate may, with
the permission of the court, commence and
prosecute to final judgment, in the name of the
executor or administrator, a like action for the
recovery of the subject of the conveyance or
attempted reconveyance for the benefit of the
creditors.
Requisites before a creditor may commence
and prosecute to final judgment:
a. Creditor should file a bond executed to
the executor or administrator, in an
amount approved by the judge,
conditioned to indemnify the executor or
administrator against the costs and
expenses incurred by reason of such
action.
b. Creditor shall have a lien upon any
judgment recovered by him for
reasonable costs and expenses à When
conveyance or attempted conveyance
made by deceased in his lifetime in favor
 of the executor or administrator, action
shall be in the name of all the
creditors and permission of the
court and filing of bond not necessary
H. DISTRIBUTION AND PARTITION
When order for distribution be made
General rule: Distribution of the residue of
estate to persons entitled thereto may be done
only after notice and hearing and after payment
of: I-FADE
1. Debts
2. Funeral charges
3. Expenses of administration
4. Allowance to widow
5. Inheritance tax
Exception: When named distributees give
bond conditioned for payment of
obligations thereof within such time as court
directs.
Requisites before distribution of estate
1. Liquidation – determination of all assets
of the estate and payment of all debts
and expenses
2. Declaration of heirs to determine to
whom residue of the estate should be
distributed. Separate action for
declaration of heirs is not proper.
Action for declaration of heirship
An action for declaration of heirship (declaracion
de herederos) refers to a special proceeding in
which a person claiming the status of heir seeks
prior judicial declaration of his or her right to
inherit from a decedent.
Note: Where there is a pending probate
proceeding, a separate action for the
declaration of heirship is not proper. It is
the probate court which has the power to
determine the issue of heirship. (Pimentel
v. Palanca, G.R. No. 2108, 18 December
1905, Willard, J.)
Project of partition
The heirs, may by agreement, submit a project
of partition to serve as the basis of the order of
distribution. The heirs who do not agree thereto
may submit a counter-project of partition. If
approved by the court, the same will serve as
the basis of the order of distribution. The court
order is approving the project may at the same
time serve as the order of distribution. (Regalado,
Remedial Law Compendium 100, 9th Edition)
Finality of approval of project of partition by
itself does not terminate probate proceeding.
10
(Timbol v. Cano, G.R. No. L015445, 29 April 1961,
Labrador, J.)
When court loses jurisdiction of an estate
Probate court loses jurisdiction of an estate
under administration only after payment of all
debts and remaining estate delivered to heirs
entitled to receive the same. (Guilas v. Judge of
CFI of Pampanga, G.R. No. L-26695, 31 January
1972, Makasiar, J.)
Remedy of heir entitled to residue but not
given his share
a. To demand his share through a proper
motion in the same probate or
administration proceedings; or
b. To demand his share through a motion
to reopen if it had already been closed,
and not through an independent action
which would be tried by another court or
judge which might reverse a decision or
order of the probate court already final
and executed and reshuffle properties
long ago distributed and disposed of
(Guilas v. Judge of CFI of Pampanga, G.R.
No. L-26695, 31 January 1972, Makasiar, J.)
Where judgment has become final, what is the
remedy for inclusion of a party-heir?
After the decision became final and executory,
the trial judge lost jurisdiction over the case.
Any modification that he would make, i.e., the
inclusion of Mary Lyon Martin would be in
excess of his authority. The remedy of Mary is
to file an independent suit against the parties
and all other heirs for her share in the subject
property, in order that all the parties in interest
can prove their respective claims. (Nunal v. CA,
G.R. No. 94005, 06 April 1993, Campos, Jr., J.)
Writs of execution issued by probate court
General Rule: A probate court cannot issue
writs of execution because its orders as a rule
refer to the adjudication of claims against the
estate which the executor or administrator may
satisfy without the need of executory process.
Exceptions:
1. Contributive shares – where the
heirs had already received their
shares in the estate, the probate court
may issue a writ of execution to
compel them to pay their respective
shares to satisfy unpaid debts of the
estate. (Ignacio v. Elchico, G.R. No. L-
18937, 16 May 1967, Sanchez, J.)
2. Examination costs – to satisfy the
costs when a person is cited for
examination in probate proceedings.
(R142, S13)
 3. Partition expenses – to satisfy the duties of
expenses of partition which the trustees may
parties may become liable in cover a wider
proportion to their respective shares range.
and interest. (R90, S3) Legal Trustee or Administrator
4. Surety’s liability on bonds – to title holder has legal or executor does
title to the not have a legal
enforce liability of sureties under
property. title to the
bonds filed with the probate court.
property/
(Cosme de Mendoza v. Pacheco, G.R. No.
estate. (Paras,
43351, 26 February 1937, Laurel, J.) Civil Code of the
Phililippines, 739,
I. TRUSTEES 11th
Edition[1985])
Trust; defined Posting Trustee may be Executor can
It is a fudiciary relationship concerning of exempt from never be
property whereby confidence is reposed upon a Bonds posting a bond. exempted from
person who hold legal title over the property (R98, S5) posting a bond
and deals with it for the benefit of another. even if such
exemption is
Exercise of sound judgment by the court in the directed in the
appointment of a trustee will. (R81, S2)
Although the will does not name a trustee, the
probate court exercises sound judgment in Conditions of the bond
appointing a trustee to carry into effect the The trustee must file a bond in an amount fixed
provisions of the will where a trust is actually by the court payable to the Government of the
created by the will by the provision that certain Philippines. Failure to do so shall be
of the property shall be kept together considered as declining or resigning the trust.
undisposed during a fixed period and for a
stated purpose. (Lorenzo v. Posadas, G.R. No. Note: The court may exempt a trustee
43082, 18 June 1937, Laurel, J.) appointed in the will from posting a
bond if the testator has directed or
Acquiring the trust by prescription requested such exemption. However, the
A trustee may acquire the trust estate by court, in its discretion, may exempt any
prescription provided there is a repudiation of trustee when all persons beneficially
the trust, such repudiation being open, clear and interested in the trust, being of legal age,
unequivocal, known to the cestui qui request such exemption (R98, S5).
trust. (Salinas v. Tuazon, G.R. No. L-33626, 02
March 1931, Johnson, J.)
Conditions of the bond:
1. Make and return to the court a
Rule 98 applies only to express trust
true inventory of all real and personal
R98 of the Rules of Court applies only to express
estate that at the time of the inventory
trust, one which is created by will or written
shall have come to his possession or
instrument, and not to an implied trust, which
knowledge.
is deducible from the nature of the transaction
2. Manage and dispose of all such estate
as a matter of intent, or which are superinduced
according to law and the will of the
on the transaction by operation of law as
testator or provisions of the instrument
matters of equity, independent of the particular
or order under which he was appointed.
intention of the parties. (O’Laco v. Co Co Chit,
3. Render a true account of the property in
G.R. No. 58010, 31 March 1993, Bellosillo, J.)
his hands.
4. At the expiration of the trust, settle his
Trustee versus Executor/Administrator
accounts in court and pay over deliver
Duties Trustee of an Duties of all the estate remaining in his hands, or
express trust are executors or due from him on such settlement, to the
usually administrators person or persons entitled thereto.
governed by are fixed and/or
the intention of limited by law. Grounds for removal and resignation of a
the trustor or (Araneta v. Perez, trustee
the parties, if G.R. Nos. L- 1. The removal appears essential in the
established by 16185-86, 31 May interest of the petitioners;
contract, thus, 1962) 2. The trustee is insane;
11
 3. The trustee is otherwise incapable of
discharging the trust or is evidently
unsuitable to act as one.
A trustee, whether appointed by the court or
under a written instrument, may resign his trust
if it appears to the court proper so allow such
resignation
Extent of authority of trustee
a. The powers of a trustee appointed by a
Philippine court cannot extend beyond
the confines of the territory of the
Republic of the Philippines. This is based
on the principle that his authority cannot
extend beyond the jurisdiction of the
country under whose courts he was
appointed.
b. In the execution of trusts, the trustee is
bound to comply with the directions
contained in the trust instrument
defining the extent and limits of his
authority, and the nature of his power
and duties.
J. ESCHEAT
Escheat; defined
It is a special proceeding instituted by the
Solicitor General or his representative in behalf
of the Republic to obtain title over the personal
or real estate of a person who dies intestate
leaving no heir or person entitle to the same.
(R91, S1)
Parties in Escheat Proceedings
An escheat proceeding is initiated by the
government through the Solicitor General. All
interested parties, especially the actual occupants
and adjacent lot owners shall be personally
notified of the proceeding and given
opportunity to present their valid claims;
otherwise, it will be reverted to the state.
Requisites for filing petition for escheat
1. Person died intestate;
2. The deceased left properties in the
Philippines; and
3. The deceased left no heirs or persons
entitled to the same.
Outline of the brief procedure in an escheat
proceeding:
1. When a person dies intestate leaving real
or personal estate but with no heir or
person entitled to the same, the Solicitor
General or his representative, in behalf of
the Republic may file a petition with the
RTC/MTC of the place where the
12
deceased last resided or in which he had
estate, if the deceased is a non-resident.
2. The court shall fix a date and place for the
hearing which shall not be more than 6
months from the entry of order and shall
direct that a copy of the order be
published at least once a week for 6
consecutive weeks in a newspaper of
general circulation.
3. The court shall adjudge that the estate of
the deceased in the Philippines, after the
payment of debts and charges, shall be
escheated.
Escheat of unclaimed balances
Unclaimed balances which include credits or
deposits of money, bullion, security or other
evidence of indebtedness of any kind, and
interest thereon with banks in favor of any
person unheard for a period of 10 years or
more, together with the interest and proceeds
thereof shall be deposited with the Insular
Government of the Philippines, as the
Philippine Legislature may direct. (Act No. 3936,
Unclaimed Balances Act, Sec. 1)
Remedy of respondent against escheat
petition
The remedy is filing a Motion to Dismiss for
failure to state a cause of action. This applies
where petition for escheat does not state facts
which entitle petitioner to the remedy prayed
for (Go Poco Grocery vs. Pacific Biscuit Co., 65 Phil.
443; Rep. vs, PNB, G.R. No. L-16016, Dec. 30,
1961). Other grounds for dismissal under the
rules. (Municipal Council of San Pedro, Laguna vs.
Colegio de San Jose, 65 Phil. 318)
Action for reversion
An action brought by the Republic to recover
properties alienated in violation of the
Constitution or of any statute (R91, S5). Lands
of public domain and real rights thereto which
were acquired in violation of the Constitution or
the public land laws shall also be reverted to the
State (Sec. 21, Art. XVIII, 1987 Constitution).
K. GUARDIANSHIP
Guardianship
A trust relation in which one person acts for
another whom the law regards as incapable of
managing his own affairs. The person who acts
is called the guardian and the incompetent is
called the ward.
Basis of Guardianship (Parens Patriae)
Where minors are involved, the State acts as
parens patriae. It is the duty of protecting the
rights of persons or individuals who because of
age or incapability are in an unfavorable
position vis-à-vis other parties.
Purpose of Guardianship
Safeguard the rights and interests of minors and
incompetent persons Courts should be vigilant
to see that the rights of such persons are
properly protected.
Guardian refers to a person in whom the law
has entrusted the custody and control of the
person or estate or both of an infant, insane, or
other person incapable of managing his own
affairs.
General powers and duties of guardians
a. Care and custody of person of the ward;
b. Management of his estate;
c. Management of his estate only;
d. The guardian of the estate of a non-
resident shall have the management of
his estate within the Philippines, and no
other court than that in which such
guardian was appointed shall have
jurisdiction over the guardianship. (R96,
S1)
Kinds of guardians
1. Legal Guardian such by provision of law
without the need for judicial
appointment, as in the case of the parents
over the persons of their minor children,
or in his absence the mother, with respect
to the property of the minor children not
exceeding P50,000 in value;
2. Guardian ad litem, who is a competent
person appointed by the court for
purposes of a particular action or
proceeding involving a minor;
3. Judicial guardian, or a person appointed
by the court for the person and/or
property of the ward to represent the
latter in all civil acts and litigation.
Parents as guardians
a. When the property of the child under
parental authority is worth P2,000.00 or
less, the father or the mother, without the
necessity of court appointment, shall be
his legal guardian.
b. When the property of the child is worth
more than P2,000.00, the father or the
mother shall be considered guardian of
the childs property, with the duties and
obligations of guardians under these
Rules, and shall file the petition required
by R93, S2. For good reasons, the court
may, however, appoint another suitable
person. (R93, S7)
13
Bond of parents as guardians of property of
minor
If the market value of the property or the
annual income of the child exceeds P50,000.00,
the parent concerned shall furnish a bond in
such amount as the court may determine, but in
no case less than 10% of the value of such
property or annual income, to guarantee the
performance of the obligations prescribed for
general guardians.
Conditions of the bond of the guardian
1. Within 3 months after the issuance of
letters of guardianship make inventory
of all the property;
2. Faithfully execute the duties of the trust;
3. Render a true and just account of all the
property of the ward; and
4. perform all orders of the court. (R94, S1)
Rule governing guardianship
Rule on guardianship of minors are now
governed by the Rule on Guardianship of
Minors (RGM) (A.M. No. 003-03-05-SC)
effective 01 May 2001. Rules 92-97 of the Rules
of Court are still applicable to guardianship
over incompetents.
Jurisdiction and venue of a guardianship
proceeding
Guardianship RTC of the place where
over the incompetent resides.
incompetents If a non-resident, with the
RTC of the place where
the incompetent’s
property or part thereof is
situated.
Guardianship Family Court of the place
over minors where the minor resides.
If a non-resident, with the
Family Court of the place
where the minor’s
property or part thereof is
situated.
Note: MTCs no longer have jurisdiction
over guardianship proceedings pursuant
to B.P. Blg. 129. However, where the
minor or incompetent is a party to an
action in the MTC, the latter may appoint
a guardian ad litem for him/her.
Who may petition for appointment of
guardian of incompetent? (R93, S1)
Relative, friend, or other person on behalf of
incompetent who has no parent or lawful
guardian, for the appointment of a general
guardian for the person or estate or both of such
incompetent.
Who may petition for appointment of
guardian of minor? (Sec. 2, RGM)
1. Relative or other person on behalf of the
minor;
2. Minor himself if 14 years of age or over
for the appointment of a general
guardian over the person or property,
or both, of such minor.
Present tendency more toward the promotion of
the welfare of the child, and enhancement of his
opportunities for a useful and happy life.
Under the law now in force, having legitimate,
legitimated, acknowledged natural children or
children by legal fiction is no longer a ground
for disqualification to adopt.

The petition may also be filed by the Objectives of Rule on Adoption

Secretary of Social Welfare and Development Best interests of child paramount consideration
and Secretary of Health in the case of an insane in all matters relating to his care, custody and
minor person who needs to be hospitalized. adoption.

Notice of application and hearing
Notice of hearing of the petition shall be served
on the following:
1. Persons mentioned in the petition
residing in the Philippines;
2. Incompetent himself (*minor if 14 years
of age or over [Sec. 8, RGM])
Note: Publication is not required.
The state shall provide alternative protection
and assistance thru foster care or adoption for
every child who is a foundling, neglected,
orphaned, or abandoned.
Laws on adoption
The prevailing laws on adoption are R.A. No.
8552 (Domestic Adoption Act of 1998) and R.A.
8043 (Inter-Country Adoption Act of 1995).

Notice is jurisdictional Rule on Adoption (A.M. No. 02-6-02-SC),

Service of notice upon the minor if 14 years of August 22, 2002 Guidelines issued by the
age or over or upon the incompetent is Supreme Court in petitions for adoption. The
jurisdictional. Without such notice, the court Rule repealed Rules 99-100 of the Rules of
acquired no jurisdiction to appoint a guardian Court. It covers domestic adoption (Secs. 1-25)
(Nery v. Lorenzo, G.R. No. L-23096, 27 April 1972, and inter-country adoption (Secs. 26-32).
Fernando, J.)
Distinction between domestic adoption from
Creditors of the minor/incompetent need not inter-country adoption
be identified
The rules do not necessitate that creditors of the Domestic Inter-country
minor or incompetent be likewise identified and KIND
Adoption Adoption
notified. It is because their presence is not
Gover- Domestic Inter-Country
essential to the proceedings for appointment of ning Adoption Act of Adoption Act of
a guardian. They will only insist that the Law 1988 (DAA); SC 1995 (ICAA);
supposed minor or incompetent is actually Rule on Adoption ROA
capacitated to enter into contracts, so as to (ROA)
preserve the validity of said contracts and keep Procedu Judicial Adoption Extrajudicial
the supposed minor or incompetent obligated to re Adoption
comply therewith. (Alamayri vs. Pabale, G.R. No. Cove- Filipinos (w/ Aliens or Filipinos
151243, 30 April 2008, Chico-Nazario, J.) rage some exceptions) permanently
adopting other residing abroad
L. ADOPTION Filipinos adopting Filipinos
Who The following An alien or a
Purpose of Adoption may may adopt: Filipino citizen
adopt (a) Any Filipino permanently
Adoption is a juridical act, a proceeding in rem,
citizen; residing abroad
which creates between two persons
(b) Any alien may file an
a relationship similar to that which results possessing the application for
from legitimate paternity and filiation. same inter-country
qualifications adoption
Adoption used to be for the benefit of the as above stated
adoptor. It was intended to afford persons who for Filipino
have no child of their own the consolation of nationals;
having one by creating thru legal fiction the (c) The guardian
relation of paternity and filiation where none with respect to
exists by blood relationship. the ward.

14
Who The following Only a legally free If filed with the
may be may be adopted: child may be the Family Court and
adopted (a) Any person subject of inter- finds petition to
below 18 years country adoption be proper, it shall
of age who has transmit petition
been to ICAB.
administrative What May include Only petition for
ly or judicially petition prayer for change adoption.
declared for of name,
available for adop- rectification of
adoption; tion simulated birth or
(b) The legitimate may declaration that
son/ daughter include the child is a
of one spouse foundling,
by the other abandoned,
spouse; dependent or
(c) An illegitimate neglected child.
son/ daughter Super- Supervised trial Supervised trial
by a qualified vised custody period in custody period in
adopter to trial the Philippines for the Philippines for
improve custody at least 6 months at least 6 months.
his/her status (Court may reduce (Sec. 14)
to that of period or exempt
legitimacy; parties from trial
(d) A person of custody). (Sec.12)
legal age if,
prior to the DOMESTIC ADOPTION
adoption, said
person has Who may adopt
been
consistently 1. Any FILIPINO citizen with the
considered
following conditions:
and treated by
the adopter(s)
as his/her own a. Of legal age;
child since b. In possession of full civil capacity
minority; and legal rights;
(e) A child whose c. Of good moral character;
adoption has d. Has not been convicted of any
been crime involving moral turpitude
previously e. Emotionally and psychologically
rescinded; or capable of caring for children
(f) A child whose f. At least 16 yrs. older than the
biological or
adoptee; and
adoptive
parent(s) has
died; Note: The 16-year old
difference requirement
Provided, That no may be waived when the
proceedings shall adopter is the biological
be initiated within parent of the adoptee or is
six (6) months the spouse of the adoptee’s
from the time of parent.
death of said
parent(s). (Sec. 8) g. In a position to support and care
Where Family Court of Family Court
for his children in keeping with
to file the place where having
petition means of the family.
the adopter jurisdiction over
resides. If the the child, or with
adopter is non- the Inter-Country 2. Any ALIEN possessing same
resident, with the Adoption Board qualifications, subject to following
Family Court (ICAB) in the conditions: CARD-3
where the child country of the
resides or may be adopter. a. Whose country has diplomatic
found relations with the Philippines;

15
 b. Who has been living in the
Philippines for at least 3
consecutive years prior the filing
of the petition for adoption;
c. Maintains his/her Philippine
residence until the entry of the
adoption of decree;
d. Who has been certified by his
diplomatic or consular office or
any appropriate government
agency to have the legal capacity
to adopt in country; and
e. Whose government allows the
adoptee to enter his country as his
adopted child.
Note: The residency and certification
may be waived for the following: FM
a. A former Filipino who seeks to
adopt a relative within the 4th
degree of consanguinity or
affinity; or
b. One who is married to Filipino,
and the person to be adopted is a
relative of the Filipino within the
4th degree. If the relative to be
adopted is other than a legitimate
child of the Filipino, the spouses
must jointly adopt.
Husband and wife must jointly adopt
Exceptions:
a. If one spouse seeks to adopt legitimate
child of the other;
b. If one spouse seeks to adopt his
own illegitimate child (provided the
other spouse signified his consent
thereto); and
c. If the spouses are legally separated from
each other.
In case husband and wife jointly adopt or one
spouse adopts the illegitimate child of the
other, joint parental authority shall be exercised
by the spouses.
Whose consent necessary
1. Biological parents of adoptee, if known
Note: However, consent of
biological parents, even if they are
known, is not necessary if they
have ABANDONED the child
(Lang v. CA, 1998).
2. Adoptee, if 10 years of age or older
3. Legitimate or adopted children of
adopter or adoptee, if 10 years of age or
older;
16
4. Illegitimate children of adopter, if living
with him, if 10 years of age or older;
5. Spouse of adopter or adoptee.
Petition for adoption may also pray for the
change of name of the adoptee
In case of such prayer, the title or caption of the
petition for adoption must contain:
1. Registered name of child;
2. Aliases of other names by which child
has been known; and
3. Full name by which child is to be
known.
Note: The change of name is not limited to
the adoptee’s surname. There is no such
restriction under the Rules of Adoption.
Publication jurisdictional
Adoption is action in rem involves the status of
persons. The order shall published before the
date of hearing at least once a week for three
(3) consecutive weeks in a newspaper of
general circulation in the province or city where
the court is situated.
Effectivity of the Decree of Adoption
The Decree of Adoption shall be issued and
shall take effect as of the date when the
original petition was filed even if
petitioners die before issuance of the decree.
Note: If in case the adoptee died during
the pendency of the adoption
proceedings, a motion to dismiss shall be
granted. The reason thereof, the death of
the adoptee extinguishes his/her legal
personality or juridical capacity. (Article
37, Civil Code)
Effects of adoption
1. For civil purposes, the adopted shall be
deemed to be a legitimate child of the
adoptive parent/s and both shall acquire
the reciprocal rights and obligations
arising from the relationship of parents
and child, including the right of the
adopted to use the surname of the
adopters;
2. The parental authority of the parents, by
nature, over the adopted shall terminate
and be vested in the adopters, except that
if the adopter is the spouse of the parent,
by nature, of the adopted, the parental
authority over the adopted shall be
exercised jointly by both spouses; and
 3. The adopted shall remain an intestate Incompetent within 5 years after
heir of his parents and other blood recovery from
relatives. (Article 189, Family Code) incompetency

Adoption strictly between adopter and Effects of rescission of adoption

adopted
If the adopting parent should die before the a. Parental authority of the biological
adopted child, latter cannot represent the parent of the adoptee, if known, or
adopter in the inheritance from the parents and the legal custody of DSWD
ascendants of the adopter. Adopted child is not is restored if the adoptee is still a minor
related to the deceased because filiation created or incapacitated;
by fiction of law is exclusive between adopted
and adopter. By adoption, the adopters can b. Reciprocal rights and obligations of the
make for themselves an heir but they cannot adopter and adoptee to each other
make one for their relatives. (Republic v. are extinguished;
Valencia, G.R. No. L-32181, 05 March 1986,
Gutierrez, Jr., J.) c. Succession rights revert to their status
prior to adoption, as of the date of
An illegitimate child, upon adoption by her judgment of rescission, but vested rights
natural father, may use the surname of her acquired prior to rescission are to be
natural mother as her middle name (In the respected;
Matter of the Adoption of Stephanie Nathy Astorga
Garcia, G.R. No. 148311, 31 March 2005, Sandoval-
d. Court shall order adoptee to use the
Gutierrez, J.)
name stated in the original birth or
foundling certificate; and
Adopter may not rescind the adoption
Adoption, being in the best interests of the child,
e. Court shall order the Civil Registrar
shall not be subject to rescission by the adopter.
where the adoption decree was
However, the adopter may disinherit the
registered to cancel the new birth
adoptee for causes provided in Article 919 of the
certificate of the adoptee
Civil Code.
and reinstate the original birth or
Rescission of adoption by the adoptee foundling certificate.
Upon verified petition filed by the adoptee who
INTER-COUNTRY ADOPTION
is over 18 years of age, or with the assistance of
the Department of Social Welfare and
Definition Inter-Agency Adoption
Development (DSWD) if he is a minor, or by his
It is the procedure whereby a foreigner or a
guardian or counsel if over 18, but is
Filipino permanently residing abroad can adopt
incapacitated, the decree of adoption may be
a Filipino child who cannot be placed in a foster
rescinded based on any of the following
or an adoptive family or cannot, in any suitable
grounds committed by the adopter:
manner, be cared for in the Philippines.
1. Repeated physical and verbal
Functions of the Family Court (Philippines)
maltreatment by adopter despite
A verified petition for inter-country adoption
having undergone counseling;
may be filed by a foreign national or Filipino
2. Attempt on life of adoptee;
citizen permanently residing abroad with the
3. Sexual assault or violence; or
Family Court having jurisdiction over the place
4. Abandonment or failure to comply with
where the child resides or may be found.
parental obligations.
The functions of the Family Court are as
Jurisdiction and venue of the petition for
follows:
rescission of adoption
1. Receive the application;
The petition shall be filed with the Family Court
2. Assess the qualification of the
of the city or province where the adoptee
prospective adopter; and
resides.
3. Refer its findings, if favorable, to the
Inter-Country Adoption Board (ICAB).
Time within which to file petition
Minor Within 5 years after
The ICAB, on its own, however, can receive the
reaching age of majority
original application. (Section 10, R.A. No. 8043;
Sections 28 and 32, Rule on Adoption)

17
Inter-Country Adoption Board
It is the central authority in matters relating to
intercountry adoption. It is the policy-making
body for purposes of carrying out the
provisions of the law, in consultation and
coordination with the DSWD, the different
child-care and placement agencies, adoptive
agencies as well as non-governmental
organizations engaged in childcare and
placement activities. (Section 4, R.A. No. 8043)
Best Interest of the Minor/Child Standard
Inter-country adoption is allowed only when
the same shall prove beneficial to the child’s
best interests, and shall serve and protect
his/her fundamental rights. (Section 2, R.A. No.
8043)
Only a child legally available for domestic
adoption may be the subject of inter-country
adoption (Section 29, Rule on Adoption)
Financial qualification in adoption
Since the primary consideration in adoption is
the best interest of the child, it follows that
the financial capacity of prospective parents
should also be carefully evaluated and
considered. Certainly, the adopter should be in
a position to support the would-be adopted
child or children, in keeping with the means of
the family. (Landingin v. Republic, G.R. No.
164948, 27 June 2006, Callejo, Sr., J.)
M. WRIT OF HABEAS CORPUS, WRIT
OF AMPARO, WRIT OF HABEAS
DATA
Writ of Habeas Corpus
It is the order of the court requiring the person
to whom it is issued to produce the person
alleged to be restrained of his liberty and to
justify such person’s detention. The remedy or
a special proceeding for obtaining the writ is a
petition for a writ of habeas corpus.
Writ of Habeas Corpus extends to the
following cases: (S1, R102)
1. All cases of illegal confinement of
detention;
2. By which any person is deprived of his
liberty; or
3. By which the rightful custody of any
person is withheld from the person
entitled thereto.
Purpose of habeas corpus
Generally, to relieve a person from unlawful
restraint.
Specifically:
18
1. To obtain immediate relief from illegal
confinement;
2. To liberate those who may be
imprisoned without sufficient cause; or
3. To deliver them from unlawful custody.
Essentially, a writ of inquiry and is granted to
test the right under which a person is detained
(Velasco v. CA, G.R. No. 118644, 07 July 1995,
Davide, Jr., J.)
When constitutional rights disregarded, writ
may issue
Exceptional remedy to release a person whose
liberty is illegally restrained such as when the
constitutional rights of the accused are
disregarded. Such defect results in the absence
or loss of jurisdiction and therefore invalidates
the trial and consequent conviction of the
accused. The void judgment, therefore, may be
challenged by collateral attack, which precisely
is the function of habeas corpus.
The writ may issue even if another remedy,
which is less effective, may be availed of failure
by accused to perfect his appeal before the CA
does not preclude recourse to the writ. The writ
may be granted upon a judgment already final.
(Chavez v. CA, G.R. No. L-29169, 19 August 1969,
Sanchez, J.)
Contents of the petition (PICO)
a. That the person in whose behalf the
application is made is imprisoned or
restrained of his liberty;
b. The officer or name of the person by
whom he is so imprisoned or restrained;
c. The place where he is so imprisoned or
restrained, if known;
d. Copy of the commitment or detention
order of such person. If it can be
procured without any legal authority,
such fact shall appear.
Note: Strict compliance with the technical
requirements including the contents of a
petition for the writ of habeas corpus may be
dispensed with where the allegations in the
application is sufficient to make out a case
for habeas corpus. (Fletcher v. Director of the
Bureau of Corrections, UDK-14071, 17 July
2009)
Courts which have jurisdiction over a petition
for writ of habeas corpus
There is a concurrent jurisdiction among the
following:
1. Supreme Court;
2. Court of Appeals;
3. Sandiganbayan, in aid of appellate
jurisdiction;
 4. Regional Trial Court in the judicial
region where the write is sought to be
enforced; or
5. Family Court, for those involving
custody of minors; when the presiding
judge of the Family Court is absent,
petition may be filed with the RTC, CA,
or SC. (Section 20, SC Rule on Custody of
Minors and Writ of Habeas Corpus in
Relation thereto; Thornton v. Thornton, G.R.
No. 154598, 16 August 2004, Corona, J.)
Contents of the Return
1. Whether he has or has not the party in his
custody or power, or under restraint;
2. If the party is in his custody or power, or
under restraint --the authority and the
true and whole cause thereof, with a
copy of the writ, order, execution, or
other processes upon which the party is
held;
3. If the party, etc. , and is not produced
nature and gravity of sickness or
infirmity;
4. If the party was in his custody, etc. and
has transferred such custody or restraint
to another to whom, at what time, for
what cause and by what authority such
transfer was made.
Distinguish peremptory writ from
preliminary citation
Peremptory writ of Preliminary
habeas corpus citation
Unconditionally Requiring the
commanding the respondent to
respondent to have appear and show
the body of the cause why the
detained person peremptory writ
before the court at a should not be
time and place granted.
therein specified.
Order to produce body not a grant of the
remedy of habeas corpus
In a habeas corpus petition, the order to present
an individual before the court is a preliminary
step in the hearing of the petition. The
respondent must produce the person and
explain the cause of his detention. However,
this order is not a ruling on the propriety of the
remedy or on the substantive matters covered
by the remedy. Thus, the Court’s order to the
Court of Appeals to conduct a factual hearing
was not an affirmation of the propriety of the
remedy of habeas corpus. (In the Matter of the
Petition for Habeas Corpus of Alejano v. Cabuay,
G.R. No. 160792, 25 August 2005, Carpio, J.)
When a Writ of Habeas Corpus NOT
proper/applicable
19
a. For asserting or vindicating denial of
right to bail; (In the Matter of the Petition
for Habeas Corpus of Juan Ponce Enrile v.
Salazar, G.R. No. 92163, 05 June 1990,
Narvasa, J.)
b. For correcting errors in appreciation of
facts and/or in the application of law. It
is not a writ of error. (Sotto vs. Director of
Prisons, G.R. No. L-18871, 30 May 1962,
Paredes. J.)
When writ disallowed or discharged
authorized
a. When the person alleged to be restrained
of his liberty is in the custody of an officer
under process issued by a court or judge;
or by virtue of a judgment or order of a
court of record, and that court or judge
had jurisdiction to issue the process,
render the judgment, or make the order,
the writ shall not be allowed.
b. When a person is charged with or
convicted of an offense or
suffering imprisonment under lawful
judgment, his discharge shall not be
authorized.
Writ of Habeas Corpus cannot be issued in
favor of military officers detained by virtue of
court-martial proceedings (Aquino v. Esperon,
G.R. No. 174994, 31 August 2007, Chico-Nazario,
J.)
Datukan Malang Salibo learned that police
officers suspected him of being Butukan S.
Malang, one of the persons for whom an arrest
warrant had been issued for involvement in
the Maguindanao Massacre. Datukan
presented himself before the police officers in
order to clear his name but eventually he was
arrested and detained. May Datukan avail of
the petition for writ of habeas corpus?
Yes. Petition for the writ of habeas corpus is the
proper remedy for a person deprived of liberty
due to mistaken identity. In such cases, the
person is not under any unlawful process and is
continuously being illegally detained. (In re
Datukan Malang Salibo, G.R. No. 197597, 08 April
2015, LEONEN, J.)
Instances when the writ of habeas corpus may
be availed of as a post-conviction remedy:
1. There has been deprivation of a
constitutional right resulting in the
restraint of a person; (Olaguer v. Military
Commission No. 34, G.R. Nos. 54558 &
69882, 22 May 1987, Gancayco, J.)
 2. The court had no jurisdiction to impose
the sentence; or
3. An excessive penalty has been imposed,
as such sentence is void as to such extent.
(Go v. Dimagiba, G.R. No. 151876, 21 June
2005, Panganiban, J.)
Period of appeal from a judgment or final
order in a habeas corpus case
An appeal in habeas corpus shall be taken
within 48 hours from notice of the judgment or
final order appealed from. Only a notice of
appeal is required to perfect the appeal.
Distinguish from writ of amparo and writ of habeas data
HABEAS CORPUS
Definition Habeas corpus is a Latin
phrase which means
produce the body.
It is a writ directed to the
person detaining another,
commanding him to
produce the body of the
prisoner at a designated
time and place, with the
day and cause of his
capture and detention, to
do, submit to, and receive
whatsoever the court or
judge awarding the writ
shall consider in that
behalf.
Availability To all cases of illegal
confinement or detention:
1. By which any
person is deprived
of his liberty; or
2. By which the
rightful custody of
any person is
withheld from the
person entitled
thereto.
AMPARO
It is a remedy available to
any person whose right to
life, liberty, and security
has been violated or is
threatened with violation
by an unlawful act or
omission of a public
official or employee, or of
a private individual or
entity.
The writ covers extralegal
killings and enforced
disappearances or threats
thereof.
To any person whose
right to life, liberty and
security is violated or
threatened with violation
by an unlawful act or
omission of a public
official or employee, or of
a private individual or
entity.
20
HABEAS DATA
It is a remedy available to
any person whose right to
privacy in life, liberty or
security is violated or
threatened by an
unlawful act or omission
of a public official or
employee, or of a private
individual or entity
engaged in the gathering,
collecting or storing data
or information regarding
the person, family, home
and correspondence of the
aggrieved party.
To any person whose
right to privacy in life,
liberty and security is
violated or threatened
with violation by an
unlawful act or omission
of a public official or
employee, or of a private
individual or entity
engaged in:
1. Gathering
2. Collecting
3. Storing
Of data or information
regarding the person

Petitioner 1. Party for whose
relief it is intended;
or
2. Other person in his
behalf.
Venue If filed with RTC, where
detainee is detained.
Extent of SC, CA and SB:
Enforceability anywhere in the
Philippines.
RTC: only within its
judicial district.
When to file On any day and at any
and exemption Time.
from
docket fees
Setting of Hearing on return.
Hearing
How served Service of the writ shall be
made by leaving the
original with the person
to whom it is directed
and preserving a copy on
which to make return of
service.
If that person cannot be
found, or has not the
prisoner in custody then
the service shall be made
on any person having or
exercising such custody.
Filing of Signed and shall also Verified written return
return be sworn to if the prisoner within 5 working days
is not produced. from service of writ;
cannot be extended except
family, home and
correspondence of the
aggrieved party.
1. By the aggrieved General rule:
party; or The aggrieved party
2. By any qualified
person or entity in Except:
the order provided In cases of extralegal
in Section 2. killings and enforced
disappearances:
1. Immediate family;
2. In default of no. 1,
ascendant,
descendant or
collateral relative
within the fourth
civil degree of
consanguinity or
affinity.
SC, CA, SB, or RTC of the SC, CA, SB, or RTC where
place where the threat, petitioner resides; where
act or omission was respondent resides; or
committed or any of its which has jurisdiction
elements occurred. over the place where data
or information is
gathered, etc.
*All at the option of
petitioner.
Anywhere in the Anywhere in the
Philippines. Philippines.
On any day and at any Indigent petitioner
time. Petitioner exempt exempt from docket fees.
from docket fees.
Not later than 7 days Not later than 10
from date of issuance of days from date of
writ. issuance of writ.
If the writ cannot be If the writ cannot be
served personally on served personally on
respondent, the rules on respondent, the rules on
substituted service shall substituted service shall
apply. apply.
Verified written return
within 5 days from service
of writ; may be
reasonably extended by
21
 on highly meritorious
grounds.
Effect of failure In case respondent fails to
To file return file a return, the court,
justice or judge shall
proceed to hear the
petition ex parte.
Summary The hearing on the
hearing petition shall be
summary.
the court for justifiable
grounds.
In case respondent fails to
return, the court, justice or
judge shall proceed to
hear the petition ex parte,
granting petitioner such
relief as the petition may
warrant unless the court
in its discretion requires
petitioner to submit
evidence.
Same as Writ of Amparo

However, the court,

justice or judge may call
for a preliminary
conference to simplify the
issues and determine the
possibility of obtaining
stipulations and
admissions from the
parties.

The hearing shall be

from day to day until
completed and given the
same priority as petitions
for habeas corpus.
Interim reliefs 1. Unless for good 1. Temporary
cause shown, the Protection Order
hearing is 2. Inspection Order
adjourned, in 3. Production Order
which event the 4. Witness Protection
court shall make Order
an order for the
safekeeping of the
person imprisoned
or restrained as the
nature of the case
requires;
2. The court or judge
must be satisfied
that the person's
illness is so grave
that he cannot be
produced without
any danger.
Judgment When the court or judge The court shall render Same with Writ of
has examined into the judgment within ten (10) Amparo with an addition
cause of caption and days from the time the that upon finality, the
restraint of the prisoner, petition is submitted for judgment shall be
and is satisfied that he is decision. If the allegations enforced by the sheriff or
unlawfully imprisoned or in the petition are proven any lawful officers as may
restrained, he shall by substantial evidence, be designated by the
forthwith order his the court shall grant the court, justice or judge
discharge from privilege of the writ and within 5 working days.
confinement, but such such reliefs as may be
discharge shall not be proper and appropriate;
22
 effective until a copy of
the order has been served
on the officer or person
detaining the prisoner. If
the officer or person
detaining the prisoner
does not desire to appeal,
the prisoner shall be
forthwith released.
Appeal 48 hours from notice of
judgment appealed from
by ordinary appeal. (Sec.
15 in relation to
Sec. 3 Rule 41 and Sec.
39 of BP 129)
Institution of
Separate
actions
Effect of filing
Criminal
action
Consolidation
No right to bail where applicant is serving
sentence due to final judgment
The Court reiterates its pronouncement in its
Resolution of 19 February 2001 in G.R. Nos.
145715-18 that:
“Section 14, Rule 102 of the Rules of
Court applies only to cases where the
applicant for the writ of habeas corpus
is restrained by virtue of a criminal
charge against him and not in an
instance, as in the case involved in the
present controversy, where the applicant
otherwise, the privilege
shall be denied.
Rule 45 by petition for Same as Writ of Amparo
review on certiorari with
peculiar features:
1. Appeal may raise
questions of fact or
law or both;
2. Period of appeal
shall be 5 working
days from the date
of notice of the
adverse judgment;
3. Same priority as
habeas corpus cases.
This Rule shall not Same as Writ of Amparo
preclude the filing of
separate criminal, civil or
administrative actions.
When a criminal action Same as Writ of Amparo
has been commenced, no
separate petition for the
writ shall be filed. The
reliefs under the writ shall
be available by motion in
the criminal case.
When a criminal action Same as Writ of Amparo
is filed subsequent to
the filing of a petition for
the writ, the latter shall
be consolidated with the
criminal action.
When a criminal action
and a separate civil
action are filed
subsequent to a petition
for a writ of amparo, the
latter shall be
consolidated with the
criminal action.
is serving sentence by reason of a final
judgment.” (Vicente v. Majaducon, A.M.
No. RTJ-02-1698 (Formerly OCA IPI No.
00-1024-RTJ), 23 June 2005)
Writ of habeas corpus cannot be issued once
person is charged with a criminal offense
Under Section 1, Rule 102 of the Rules of
Court, the writ of habeas corpus extends to all
cases of illegal confinement or detention by
which any person is deprived of his liberty, or
which withhold the rightful custody of any
person from the person entitled thereto. The
23
remedy of habeas corpus has one objective: to
inquire into the cause of detention of a person,
and if found illegal, the court orders the release
of the detainee. If, however, the detention is
proven lawful, then the habeas corpus
proceedings terminate. (In the Matter of the
Petition for Habeas Corpus of Kunting, G.R. No.
167193, 19 April 2006, Azcuna, J.)
Recent Jurisprudence
1. Section 1, Rule 102 of the Rules of Court
provides that a petition for the issuance
of a writ of habeas corpus may be availed
of in cases of illegal confinement by
which any person is deprived of his
liberty, or by which the rightful custody
of any person is withheld from the
person entitled thereto. The writ may
also be issued where, because of a
judicial proceeding,
a. There has been a deprivation
of a constitutional
right resulting in the restraint
of a person;
b. The court had no
jurisdiction to impose the
sentence; or
c. An excessive penalty has been
imposed, as such sentence is
void as to such excess.
(In the Matter of the Application for the Writ
of Habeas Corpus Reclassifying Sentence to
R.A. NO. 8353 in Behalf of Rogelio Ormilla,
et al. vs, The Director, Bureau of
Corrections, G.R. No. 170497, 22 January
2007)
2. The rule is that if a person alleged to be
restrained of his liberty is in custody of
an officer under process issued by a court
or judge or by virtue of a judgment or
order of a court of record, the writ of
habeas corpus will not be allowed.
(Barredo v. Vinarao, G.R. No. 168728, 02
August 2007, Corona, J.)
3. Once a person detained is duly charged
in court, he may no longer question his
detention through a petition for issuance
of a writ of habeas corpus. His remedy
would be to quash the information
and/or the warrant of arrest duly issued.
The term court includes quasi-judicial
bodies or governmental agencies
authorized to order the persons
confinement, like the Deportation Board
of the Bureau of Immigration.
24
The provisional or temporary release of a
detainee also effectively granted the
petition for habeas corpus insofar as the
discharge of the detainee is concerned,
since the main prayer in a petition for
habeas corpus relates to the release or
discharge of the detainee. The general
rule is that the release, whether
permanent or temporary, of a detained
person renders the petition for habeas
corpus moot and academic. (Office of the
Solicitor General vs. Judge de Castro, A.M.
No. RTJ-06-2018 (Formerly Adm. Matter
OCA-IPI No. 05-2360-RTJ), 03 August
2007)
4. The Rules clearly require that a copy of
the commitment or cause of detention
must accompany the application for the
writ of habeas corpus. Thus, a judge
cannot grant writs of habeas corpus
without the pertinent copies of detention
and judgment of conviction. (Office of the
Court Administrator vs. Judge Perello, A.M.
No. RTJ-05-1952, 24 December 2008)
5. A writ of habeas corpus extends to all
cases of illegal confinement or detention
or by which the rightful custody of
person is withheld from the one entitled
thereto. Respondent, as the judicial
guardian of Lulu, was duty-bound to
care for and protect her ward. For her to
perform her obligation, respondent must
have custody of Lulu. Thus, she was
entitled to a writ of habeas corpus after
she was unduly deprived of the custody
of her ward. (Hernandez v. San Juan-
Santos, G.R. No. 166470, 07 August 2009,
Corona, J.)
N. WRIT OF AMPARO (A.M. No. 07-9-12-
SC) – Effective 24 October 2007
Writ of Amparo
It is a remedy available to any person whose
right to life, liberty, and security has been
violated or threatened with violation by a public
official or employee or a private individual or
entity. The writ covers extralegal killings and
enforced disappearances or threats thereof.
Note: The Supreme Court has held that
the writ is confined to cases of extralegal
killings and enforced disappearances or
threats thereof. Hence, the writ cannot be
availed of by an alien detained by the
Bureau of Immigration by virtue of a
legal process. (Mison v. Gallegos, 23 June
2015, Perez, J.)
Extralegal killings; enforced disappearances Rule 27 of the Rules of Civil Procedure.
Extralegal killings refer to killings committed (Secretary of National Defense v. Manalo, G.R. No.
without due process of law, i.e., without legal 180906, 07 October 2008, Puno, C.J.)
safeguards or judicial proceedings.
Contents of return PAID
Enforced disappearances, for the purpose of 1. Lawful defenses to show that
Writ of Amparo, refer to disappearances respondent did not violate or threaten
attended by the following characteristics: with violation the right to life, liberty or
security of the aggrieved party, through
a. An arrest, detention, or abduction of a any act or omission;
person by a government official or 2. Steps or actions taken by the respondent
organized groups or private individuals to determine the facts or whereabouts of
acting with the direct or indirect the aggrieved party and person/s
acquiescence of the government; responsible for the threat, act or
omission;
b. The refusal of the State to disclose the 3. All relevant information in the
fate or whereabouts of the person possession of respondent pertaining to
concerned or a refusal to acknowledge the threat, act or omission against the
the deprivation of liberty, which places aggrieved party;
such persons outside the protection of 4. If respondent is a public official or
law. employee, the return shall further state
the actions that have been or will be
Writ of Amparo vs. Search Warrant taken:
WA SW a. To verify the identity of the
Purpose Protective: To Criminal aggrieved party;
protect a prosecution: b. To recover and preserve evidence
person’s right To discover related to the death or
to life, liberty, and seize disappearance of the
or security. personal person identified in the petition
property in which may aid in the prosecution
furtherance of of the person or persons
criminal responsible;
prosecution. c. To identify witnesses and obtain
Where SC, CA, SB, RTC/MTC statements from them concerning
filed RTC (where within whose the death or disappearance;
threat or act territorial d. To determine the cause, manner,
committed) jurisdiction/ location and time of death or
judicial region disappearance as well as any
a crime was pattern or practice that may have
committed. brought about the death or
Person Private/ Peace officer disappearance;
initiating public person. or law e. To identify and apprehend the
enforcement person or persons involved in the
agency only. death or disappearance; and
Seizure Personalty is Pesonal f. To bring the suspected offenders
of perso- not seized by property is before a competent court.
nalty is merely seized under
inspected or S3, R126. Note: A general denial of the allegations
copied. in the petition shall not be allowed.

Production Order under the Writ of Amparo Omnibus Waiver Rule

The production order under the Amparo Rule
should not be confused with a search warrant or
law enforcement under Art. III, Sec. 2 of the
Constitution. The Constitutional provision is a
protection of the people from the unreasonable
intrusion of the government, not a protection of
the government from the demand of the people
as such respondents. Instead, the Amparo
Production Order may be limited to the
production of documents or things under Sec. 1,
25
All defenses shall be raised in the return,
otherwise, they shall be deemed waived. In
other words, all defenses not pleaded are
deemed waived.
Quantum of Proof required in Writ of Amparo
Substantial evidence or that amount of relevant
evidence, which a reasonable mind might
accept as adequate to support a conclusion.
 Note: Writ of Amparo provides rapid
judicial relief as it partakes of a summary
proceeding that requires only substantial
evidence to make the appropriate reliefs
available to the petitioner; not an action
to determine criminal guilt requiring
proof beyond reasonable doubt, or
liability for damages requiring
preponderance of evidence, or
administrative responsibility requiring
substantial evidence that will require full
and exhaustive proceedings
Writ of Amparo is both preventive and
curative
It is preventive in that it breaks the expectation
of impunity in the commission of these offenses;
it is curative in that it facilitates the subsequent
punishment of perpetrators as it will inevitably
yield leads to subsequent investigation and
action.
Hearsay evidence is admissible in Amparo
cases
Technical rules of evidence are not strictly
observed in Writ of Amparo case. The rules of
evidence are reduced to the most basic test of
reason––i.e., to the relevance of the evidence to
the issue at hand and its consistency with all
other pieces of adduced evidence. Thus, even
hearsay evidence can be admitted if it satisfies
the basic minimum test. (Razon v. Tagitis, 03
December 2009, Brion, J.)
Decision in Writ of Amparo and Writ of
Habeas Corpus are immediately executory
There is no need to fil a motion for execution for
an amparo or habeas corpus decision. Hence in a
case, the CA erred in ruling that its directive to
immediately release Sherlyn, Karen, and Merino
was not automatically executory and that
petitioners should have filed a motion of writ of
execution. That would defeat the very purpose
of having a summary proceedings in amparo
petitions. Summary proceedings are
immediately executory without prejudice to
appeal. (Boac v. Cadapan, 31 May 2011, Carpio-
Morales, J.)
Jurisprudence
1. The threatened demolition of a dwelling
by virtue of a final judgment of the court
is not included among the enumeration
of rights for which the remedy of a Writ
of Amparo is made available. Their claim
to their dwelling, assuming they still
have any despite the final and executory
judgment adverse to them, does not
constitute right to life, liberty and
security. There is, therefore, no legal
basis for the issuance of the Writ of
26
Amparo. (Canlas v. Napico Homeowners
Association I XIII, Inc., G.R. No. 182795, 05
June 2008, Reyes, R.T., J.)
2. Under these legal and factual situations,
we are far from satisfied with the prima
facie existence of the ultimate facts that
would justify the issuance of a Writ of
Amparo. Rather than acts of terrorism
that pose a continuing threat to the
persons of the petitioners, the violent
incidents alleged appear to us to be
purely property-related and focused on
the disputed land. Thus, if the petitioners
wish to seek redress and hold the alleged
perpetrators criminally accountable, the
remedy may lie more in the realm of
ordinary criminal prosecution rather
than on the use of the extraordinary
remedy of the Writ of Amparo. (Tapuz v.
Judge del Rosario, G.R. No.182484, 17 June
2008, Brion, J.)
3. While the right to life under Article III,
Section 1 guarantees essentially the right
to be alive -upon which the enjoyment of
all other rights is preconditioned -the
right to security of person is a guarantee
of the secure quality of this life.
First, the right to security of
person is freedom from fear. (Universal
Declaration of Human Rights [UDHR] and
International Covenant on Civil and Political
Rights [ICCPR]) The Philippines is a
signatory to both the UDHR and the
ICCPR.
Second, the right to security of
person is a guarantee of bodily and
psychological integrity or security.
(Article III, Section 12 of the 1987
Constitution)
Third, the right to security of
person is a guarantee of protection of
ones rights by the government.
Protection includes conducting effective
investigations, organization of the
government apparatus to extend
protection to victims of extralegal
killings or enforced disappearances (or
threats thereof) and/or their families,
and bringing offenders to the bar of
justice. (The Secretary of National Defense v.
Manalo, G.R. No. 180906, 07 October 2008,
Puno, C.J.)
O. WRIT OF HABEAS DATA (A.M. No.
08-1-16-SC) – Effective 02 February 2008
Writ of Habeas Data
It is a remedy available to any person whose
right to privacy in life, liberty, or security is
violated or threatened by an unlawful act or
omission of a public officials or employee, or of
a private individual or entity engaged in the
gathering or storing of data or information
regarding the person, family, home, and
corresponding of the aggrieved party.
Contents of the verified petition
1. The personal circumstances of the
petitioner and the respondent;
2. The manner the right to privacy is
violated or threatened and how it affects
the right to life, liberty or security of the
aggrieved party;
3. The actions and recourses taken by the
petitioner to secure the data or
information;
4. The location of the files, registers or
databases, the government office, and
the person in charge, in possession or in
control of the data or information, if
known;
5. The reliefs prayed for, which may
include the updating, rectification,
suppression or destruction of the
database or information or files kept by
the respondent. In case of threats, the
relief may include a prayer for an order
enjoining the act complained of; and
6. Such other relevant reliefs as are just
and equitable. (Section 6)
Contents of return
1. Lawful defenses such as national
security, state secrets, priviliged
communication, confidentiality of the
source of information of media and
others;
2. If respondent in charge, in possession or
in control of the data or information
subject of the petition;
a. Disclosure of the data or
information about petitioner,
nature of such data or
information, and purpose of its
collection;
b. Steps or actions taken by
respondent to ensure the security
and confidentiality of the data or
information;
c. Currency and accuracy of the data
and information held; and
d. Other allegations relevant to the
resolution of the proceeding;
Note: A general denial of the allegations
in the petition shall not be allowed.
27
Instances when petition heard in chambers
Hearing in chambers may be conducted where
respondent invokes the defense that the release
of the data or information shall compromise
national security or state secrets, or when the
data or information cannot be divulged to the
public due its nature or privileged character.
(Section 12)
Period and mode of appeal from a judgment in
Writ of Habeas Data case
Any party may appeal from the final judgment
or order to the Supreme Court under Rule 45.
The period to appeal shall be five (5) working
days from notice of the adverse judgment.
While not expressly provided for in the Rules,
in case a motion for reconsideration or motion
for new trial is filed and denied, the 5-working-
day period should be computed from notice of
the order denying the MR or MNT. The appeal
may raise questions of fact or law or both.
Jurisprudence
1. Section 6 of the Rule on the Writ of
Habeas Data requires material
allegations of ultimate facts in a
petition for the issuance of a writ of
habeas data:
Specifically, we see no concrete
allegations of unjustified or unlawful
violation of the right to privacy related to
the right to life, liberty or security. The
petition likewise has not alleged, much
less demonstrated, any need for
information under the control of police
authorities other than those it has already
set forth as integral annexes. The
necessity or justification for the issuance
of the writ, based on the insufficiency of
previous efforts made to secure
information, has not also been shown. In
sum, the prayer for the issuance of a writ
of habeas data is nothing more than the
fishing expedition that this Court-in the
course of drafting the Rule on habeas
data-had in mind in defining what the
purpose of a writ of habeas data is not. In
these lights, the outright denial of the
petition for the issuance of the writ of
habeas data is fully in order. (Tapuz v.
Judge Rosario, supra.)
P. CHANGE OF NAME
Purpose of Rule
Under Article 376 of the Civil Code, no person can
change his name or surname without juridical
authority. Involving substantial changes,
objective is the prevention of fraud.
Nature of proceeding
To establish the status of a person involving his
relation with others, that is, his legal position in,
or, with regard to the rest of the community.

Who may file petition

Person all natural persons regardless of status:
1. Adopted child.
2. Alien, who is domiciled in the
Philippines, and not one temporarily
staying.

Jurisdictional requirements
1. Publication of petition for 3 consecutive
weeks in newspaper, etc.;
2. Both title or caption and body shall
recite:
a. Name or names or alias of
applicant;
b. Cause for which change of name
is sought;
c. New name asked for.

Reason: change of name a matter of public

interest–petitioner might be in rogues
gallery or hiding to avoid service of
sentence or escaped from prison–if alien
might have given case for deportation, or
subject of deportation order.
Differences under Rule 103, RA 9048, and Rule 108

Rule 103 Rule 108 R.A. 9048

Rule or Law Change of Name Cancellation/ Correction Clerical Error Act
of Entries in the Civil
Registry
Subject Change of full name or Cancellation or Change of first name or
Matter family name (substantial correction of civil nickname and correction
corrections) registry entries of civil registry entries
(substantial corrections) (only typographical or
clerical errors)
Who may File A person desiring to Any person interested in Any person having direct
change his name. any act, event, order or and personal interest in
(Section 1) decree concerning the the correction of a clerical
civil status of persons, or typographical error in
which has been recorded an entry and/or change
in the civil register. of first name or
(Section 1) nickname. (Section 3)
Venue RTC of the province in RTC of city or province 1. Local civil registry
which petitioner resided where the corresponding office of the city or
for 3 years prior to filing. civil registry is located. municipality where
the record being
sought to be corrected
or changed is kept;
2. Local civil registrar of
the place where the
interested party is
presently residing or
domiciled;
3. Philippine Consulate

28
Contents of 1. That petitioner has 1. Facts necessary to
petition been a bona fide establish the merits of
resident of the petition;
province where the 2. Particular erroneous
petition is filed for at entry or entries, which
least three (3) years are sought to be
prior to the date of corrected and/or the
such filing; change sought to be
2. The cause for which made.
the change of
petitioner's name is Petition shall be
sought; supported by the
3. The name asked for. following documents:
(Section 2)
1. A certified true
machine copy of the
certificate or of the
page of the registry
book containing the
entry or entries
sought to be corrected
or changed;
2. At least two (2) public
or private documents
showing the correct
entry or entries upon
which the correction
or change shall be
based; and
3. Other documents
which petitioner or
the city or municipal
civil registrar or the
consul general may
consider relevant and
necessary for the
approval of petition.
(Section 5)
Grounds 1. Name is ridiculous, Upon good and valid 1. Petitioner finds the
tainted with dishonor grounds. first name or
and extremely difficult nickname to be
to write of pronounce; ridiculous, tainted
2. Consequence of with dishonor or
change of status; extremely difficult to
3. Necessity to avoid write or pronounce;
confusion; 2. The new first name or
4. Having continuously nickname has been
used and been known habitually and
since childhood by a continuously used by
Filipino name, petitioner and he has
unaware of her alien been publicly known
parentage; by that first name or
5. A sincere desire to nickname in the
adopt a Filipino name community; or
to erase signs of 3. The change will avoid
former alienage all in confusion. (Section 4)
good faith and without
prejudicing anybody.
Kind of Judicial Proceeding Judicial Proceeding Administrative
proceeding Adversarial in nature Proceeding
because involves
29
 substantial changes and
affects the status of an
individual.
What to file File a signed and verified File a verified petition for File an affidavit.
petition. the cancellation or
correction of any entry.
Notice and At least once a week for At least once a week for At least once a week for
Publication three consecutive weeks three consecutive weeks two consecutive weeks
in a newspaper in a newspaper of (publish the whole
circulation (notice of general circulation (notice affidavit) in change of
hearing). of hearing). first name or nickname.
Posting No posting. No posting. Duty of the civil registrar
or Consul to post petition
in a conspicuous place
for 10 consecutive days.
Who The Solicitor General or The Civil Registrar. The Civil Registrar or
participates the proper provincial or Consul.
on the city fiscal shall appear on
part of the behalf of the
Government Government of the
Republic.
Where to Appeal decision to the Appeal decision to the Appeal decision to the
appeal: Court of Appeals. Court of Appeals. Civil Registrar General
(head of NCSO).

30
Grounds for change of name
The State has an interest in the names borne by
individuals and entities for purposes of
identification. A change of name is a privilege
and not a right, so that before a person can be
authorized to change his name, he must show
proper or reasonable cause, or any compelling
reason, which may justify such change.
Grounds for change of name, which have been
held valid:
1. Name is ridiculous, dishonorable, or
extremely difficult to write or
pronounce;
2. Change results as a legal consequence,
as in legitimation;
3. Change will avoid confusion;
4. When one has continuously used and
been known since childhood by a
Filipino name, and was unaware of alien
parentage;
5. Sincere desire to adopt Filipino name to
erase signs of former alienage, all in
good faith and without prejudicing
anybody;
6. Surname causes embarrassment and
there is no showing that the desired
change of name was for a fraudulent
purpose or that the change of name
would prejudice public interest.
7. Middle names serve to identify the
maternal lineage or filiation of a person
as well as further distinguish him from
others, who may have the same given
name and surname as he has. In the case
at bar, the only reason advanced by
petitioner for dropping, his middle
name is convenience. (In Re Petition for
Change of Name and/or
Correction/Cancellation of Entry of Civil
Registry of Julian Lin Carulasan Wang,
G.R. No. 159966, 30 March 2005)
Jurisprudence
1. Under Article 176 of the Civil Code,
Giovanni is entitled to change his name,
as his father never recognized him, while
his mother has always recognized him as
her child. A change of name will erase
the impression that he was ever
recognized by his father. It is also his best
interest, as it will facilitate his mother’s
intended petition to have him join her in
the United States. The Court will not
stand in the way of the reunification of
31 2020 BAR EXAMS #BESTBAREVER
mother and son. (Republic of the
Philippines v. Capote, G.R. No. 157043, 02
February 2007)
2. The court shall grant the petition under
Rule 103 only when satisfactory proof
has been presented in open court that the
order had been published as directed, the
allegations in the petition are true, and
proper and reasonable causes appear for
changing the name of the petitioner. (Re:
Final report on the judicial audit conducted
at the RTC, Br. 67, Paniqui, Tarlac, A.M.
No. 06-7-414-RTC, 19 October 2007)
3. As for respondents change of name
under Rule 103, this Court has held that
a change of name is not a matter of right
but of judicial discretion, to be exercised
in the light of the reasons adduced and
the consequences that will follow. The
trial courts grant of respondents change
of name from Jennifer to Jeff implies a
change of a feminine name to a
masculine name. Considering the
consequence that respondents change of
name merely recognizes his preferred
gender, we find merit in respondents
change of name. Such a change will
conform with the change of the entry in
his birth certificate from female to male.
(Republic v. Cagandahan, G.R. No. 166676,
12 September 2008)
Q. ABSENTEES
Purpose of Rule 107 on Absentees
The primordial purpose of Rule 107 is to
provide for an administrator of the property of
the absentee. The general interest of society may
require that property does not remain
abandoned without someone representing it
and without an owner. (Reyes v. Alejandro, G.R.
No. L-32026, 16 January 1986)
Who may file; when to file Provisional
representative
When a person disappears from his domicile,
his whereabouts being unknown, and without
having left an agent to administer property or
the power conferred on the agent has expired,
an interested party, relative, or friend may file
a petition in the RTC of the place where the
absentee resided before disappearance appoint
provisionally a representative for him. (Section 1)
When may the petition for declaration of
absence and appointment of a trustee or
administrator be filed?
After the lapse of 2 years from a person’s
disappearance and without any news about the
absentee or since the receipt of the last news, or
of 5 years in case the absentee has left a person
in charge of the administration of his property,
the declaration of his absence, and the
appointment of a trustee or administrator may
be applied for by any of the following:
(a) The spouse present;
(b) The heirs instituted in a will, who may
present an authentic copy of the same;
(c) The intestate heirs; and
(d) Those who have over the property of the
absentee some rights subordinated to the
condition of his death.
Notice and publication required
Copies of the notice and hearing shall be served
on known heirs and creditors and other
interested persons and published once a week
for three (3) consecutive weeks in a newspaper
of general circulation.
Declaration of presumptive death
No independent action for declaration of
presumption of death presumption may arise
and be invoked in an action or special
proceeding
Exception: Under Art. 41 of Family Code,
for purpose of present spouse
contracting a second marriage, he must
file summary proceeding for declaration
of presumptive death of the absentee,
without prejudice to the latter’s
reappearance.
Rationale: This is intended to
protect present spouse from
criminal prosecution for bigamy
under Article 349 of RPC. With
judicial declaration that missing
spouse is presumptively dead,
good faith of present spouse in
contracting marriage is
established.
Period of absence of spouse before subsequent
marriage
Four (4) consecutive years if there is a well-
founded belief that absent spouse already dead;
or two (2) years if in danger of death.
32
R. CANCELLATION OR CORRECTION
OF ENTRIES IN THE CIVIL
REGISTRY
Who may file petition
Any person interested in any act, event, or
decree concerning the civil status of persons,
which has been recorded in the civil registry.
Venue
Regional Trial Court of place where
corresponding civil registry is located.
Correction of entry under Rule 108 proceeding
in rem publication binds the whole world
Substantial corrections or cancellations of
entries in civil registry records affecting the
status or legitimacy of a person may be effected
through the institution of a petition under Rule
108 of the Revised Rules of Court, with the
proper Regional Trial Court. Being a proceeding
in rem, acquisition of jurisdiction over the
person of petitioner is therefore not required in
the present case. It is enough that the trial court
is vested with jurisdiction over the subject
matter.
The service of the order at No. 418
Arquiza St., Ermita, Manila and the publication
thereof in a newspaper of general circulation in
Manila, sufficiently complied with the
requirement of due process, the essence of
which is an opportunity to be heard. The
publication of the order is a notice to all
indispensable parties, including Armi and
petitioner minor, which binds the whole world
to the judgment that may be rendered in the
petition. (Alba v. CA, G.R. No. 164041, 29 July
2005)
Indispensable parties must be notified
Under Sec. 3, Rule 108 not only the civil registrar
but also all persons who have or claim any
interest which would be affected by a
proceeding concerning the cancellation or
correction of an entry in the civil register must
be made parties thereto. Further, the lack of
summons on the concerned party was not cured
by the publication of the order of the trial court
setting the case for hearing for three consecutive
weeks in a newspaper of general circulation.
Summons must still be served, not for vesting
the courts with jurisdiction, but to comply with
the requirements of fair play and due process.
This is but proper, to afford the person
concerned the opportunity to protect her
interest if she so chooses. (Ceruila v.
Delantar, G.R. No. 140305, 09 December 2005)
Administrative correction of clerical or
typographical errors
The obvious effect of Republic Act No. 9048 is
merely to make possible the administrative
correction of clerical or typographical errors or
change of first name or nickname in entries in
the civil register, leaving to Rule 108 the
correction of substantial changes in the civil
registry in appropriate adversarial proceedings.
(Republic v. Benemerito G.R. No. 146963, 15 March
2004)
Change of name under Rule 108
The enactment in March 2001 of Republic Act
No. 9048 has been considered to lend legislative
affirmation to the judicial precedence that
substantial corrections to the civil status of
persons recorded in the civil registry may be
effected through the filing of a petition under
Rule 108. When all the procedural requirements
under Rule 108 are followed, the appropriate
adversary proceeding necessary to effect
substantial corrections to the entries of the civil
register is satisfied.
With respect to the correction in Carlito s
birth certificate of his name from Carlito John to
Carlito, the same was properly granted under
Rule 108 of the Rules of Court. As correctly
pointed out by the CA, the cancellation or
correction of entries involving changes of name
falls under letter o of the following provision of
Section 2 of Rule 108: “Entries subject to
cancellation or correction. Upon good and valid
grounds, the following entries in the civil register
may be cancelled or corrected: x x x (o) changes of
name.” Hence, while the jurisdictional
requirements of Rule 103, which governs
petitions for change of name, were not complied
with, observance of the provisions of Rule 108
suffices to effect the correction sought for.
(Republic v. Kho, G.R. No. 170340, 28 June 2007)
No intent on the part of the lawmakers to
remove the authority of the trial courts to make
judicial corrections of entries in the civil
registry
It can be concluded that the local civil registrar
has primary, not exclusive, jurisdiction over
such petitions for correction of clerical errors
and change of first name or nickname, with
R.A. No. 9048 prescribing the procedure that the
33
petitioner and local civil registrar should follow.
Since R.A. No. 9048 refers specifically to the
administrative summary proceeding before the
local civil registrar it would be inappropriate to
apply the same procedure to petitions for the
correction of entries in the civil registry before
the courts. (Re: Final Report on the Judicial Audit
Conducted at the Regional Trial Court, Br. 67,
Paniqui, Tarlac, A.M. No. 06-7-414-RTC, 18
October 2007)
Change of first name is within the primary
jurisdiction of the local civil registrar
R.A. No. 9048 now governs the change of first
name. It vests the power and authority to
entertain petitions for change of first name to
the city or municipal civil registrar or consul
general concerned. Under the law, therefore,
jurisdiction over applications for change of first
name is now primarily lodged with the
aforementioned administrative officers. The
intent and effect of the law is to exclude the
change of first name from the coverage of Rules
103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the
Rules of Court, until and unless an
administrative petition for change of name is
first filed and subsequently denied. It likewise
lays down the corresponding venue, form and
procedure. In sum, the remedy and the
proceedings regulating change of first name are
primarily administrative in nature, not judicial.
(Silverio v. Republic, G.R. No. 174689, 22 October
2007)
Change of sex or gender allowed where person
has both male and female sexual
characteristics
The trial court ordered the correction of entries
in the birth certificate of respondent to change
her sex or gender, from female to male, on the
ground of her medical condition known as
Congenital Adrenal Hyperplasia (CAH), and
her name from Jennifer to Jeff, under Rules 103
and 108 of the Rules of Court, “xxx CAH is one of
many conditions that involve intersex anatomy.” As
for respondents change of name under Rule 103,
this Court has held that a change of name is
not a matter of right but of judicial discretion,
to be exercised in the light of the reasons
adduced and the consequences that will follow.
The trial courts grant of respondent’s change of
name from Jennifer to Jeff implies a change of a
feminine name to a masculine name. Such a
change will conform with the change of the
entry in his birth certificate from female to male.
(Republic v. Jennifer Cagandahan, G.R. No. 166676,
12 September 2008)
A persons first name cannot be changed on the
ground of sex reassignment
Petitioner sought to have his name in his birth
certificate changed from Rommel Jacinto to
Mely, and his sex from male to female.
Petitioners basis in praying for the change of his
first name was his sex reassignment. He
intended to make his first name compatible with
the sex he thought he transformed himself into
through surgery. However, a change of name
does not alter ones legal capacity or civil
status. R.A. 9048 does not sanction a change of
first name on the ground of sex reassignment.
(Silverio v. Republic, G.R. No. 174689, 22 October
2007)
Registered name of illegitimate child
An illegitimate child whose filiation is not
recognized by the father bears only a given
name and his mother’s surname, and does not
have a middle name. The name of the
unrecognized illegitimate child therefore
identifies him as such. It is only when the
illegitimate child is legitimated by the
subsequent marriage of his parents or
acknowledged by the father in a public
document or private handwritten instrument
that he bears both his mother’s surname as his
middle name and his father’s surname as his
surname, reflecting his status as a legitimated
child or an acknowledged illegitimate child.
Accordingly, the registration in the civil registry
of the birth of such individuals requires that the
middle name be indicated in the certificate. The
registered name of a legitimate, legitimated and
recognized illegitimate child thus contains a
given or proper name, a middle name, and a
surname. (In Re: Petition for Change of Name
and/or Correction/Cancellation of Entry in Civil
Registry of Julian Lin Carulasan Wang, G.R. No.
159966, 30 March 2005)
When procedure becomes an adversary
proceedings
Procedure becomes adversary proceedings
when opposition to petition is filed by Local
Civil Registrar or any person having or claiming
interest in entries sought to be cancelled and/or
corrected and opposition is actively prosecuted.
Application of Rule or Law
All doubts resolved in Lee v. Court of Appeals,
G.R. No. 118387, 11 October 2001, De Leon, Jr., J.)
34
Substantial Rule 108
corrections
Clerical or R.A. No. 9084
typographical
errors (including
change of first
name)
S. APPEALS IN SPECIAL
PROCEEDINGS
Judgments and orders for which appeal may
be taken HACAFF
1. Allows or disallows a will.
2. Determines who are the lawful heirs or
the distributive share of the estate to
which such heir is entitled.
3. Allows or disallows any claim against
the estate or any claim presented on
behalf of the estate to off-set a claim
against it.
4. Settles the account of an executor,
administrator, trustee, or guardian
(GATE);
5. Constitutes in estate proceedings or
those relating to the administration of a
trustee or a guardian (GET), a final
determination in the lower court of the
rights (fdr) of the party appealing.
6. Which is the final order or judgment
rendered in the case, and affects the
substantial rights of the person
appealing (foasra).
Modes of appeal
Rules 40, 41, 42 and 45 apply in conformity with
Rule 72, Sec. 2 (applicability of rules of Civil
Actions). If it is an ordinary appeal under Rules
40 or 41, and the special proceedings are subject
to multiple appeals, like settlement of estates,
the appeal period is 30 days, a notice of appeal
and record on appeal being required.
Rationaler: To enable the rest of the case
to proceed in the event that a separate
and distinct issue is resolved by the court
and held to be final. In this multi-appeal
mode, the probate court loses jurisdiction
only over the subject matter of the appeal
but retains jurisdiction over the special
proceeding from which the appeal was
taken for purposes of further remedies
the parties may avail of.
Where multi-appeals are allowed, we see no
reason why a separate petition for certiorari
cannot be allowed on an interlocutory aspect of
the case that is separate and distinct as an issue WHC issued by the
from the aspect of the case that has been RTC shall be
adjudged with finality by the lower court. enforceable only
(Briones v. Henson-Cruz, G.R. No. 159130, 22 within its judicial
August 2008) region. WHC issued by
the SC, CA, or any of
Rule on advance distribution its members shall be
Notwithstanding a pending controversy or enforceable anywhere
appeal in proceedings to settle the estate of a in the Philippines.
decedent, the court may, in its discretion and WHC for Family Courts have
upon such terms as it may deem proper and Custody of exclusive jurisdiction.
just, permit that such part of the estate as may Minors (Family
be affected by the controversy or appeal be Courts Act of WHC issued by the
distributed among the heirs or legatees, upon 1997, R.A. RTC shall be
compliance with the conditions set forth in Rule 8309) enforceable only
90. within its judicial
region. WHC issued by
Rule 90, Section 1 allows the distribution the SC, CA, or any of
before payment of obligations, provided its members shall be
distributes shall give a bond conditioned for enforceable anywhere
payment thereof within such time as court in the Philippines.
directs. Writ of SC, CA, and SB. RTC
Amparo (A.M. of the place where the
Venue of special proceedings No. 07-09-12- threat, act, or omission
Settlement of RTC or MTC of SC) was committed or any
estate (R73) province where the of its elements
deceased last occurred.
resided/property Writ of Habeas SC, CA, and SB. RTC
situated. Data (A.M. No in either of the
Escheat (R91) RTC of the province 08-01-16-SC) following, at the
where the deceased option of the
last resided/property petitioner:
situated. (a) Where petitioner
Guardianship Family Court of the resides; or
of a Minor province or city where (b) Where respondent
(A.M. No. 03- the minor resides/ resides; or
02-05-SC) property situated. (c) Which has
Guardianship RTC of the province or jurisdiction over
of an city where the the place where
Incompetent incompetent resides/ data or info is
(R92) property situated. gathered.
Adoption (Rule Family Court of the Change of RTC of the province of
on Adoption province or city where Name (R103) residence of petitioner.
[A.M. No. 02- prospective adoptive Absentees RTC of place where
06-02-SC) parents reside. (R107) absentee resided
before his
In case of rescission of disappearance.
the decree of adoption,
where the adoptee Cancellation RTC of place where
resides. or correction of civil registry is located.
Writ of Habeas If filed with the RTC, entries (R108) Correction of clerical
Corpus (R102) where detainee is or typographical
detained. SC, CA, and errors.
RTC have concurrent
jurisdiction. If R.A. 9048 applies,
Local Civil Registrar of
35
the place where record
is located.

Exception: If
impractical in terms of
transportation
expenses, time and
effort as where
petitioner has
transferred to another
place Local Civil
Registrar of petitioners
residence.

36