REMEDIAL NOTES for 2019 BAR

VI. SPECIAL PROCEEDINGS

A. Settlement of estate of deceased persons

1. Venue and process
a. RTC
i. gross value of estate exceeds 300T outside MM
ii. exceeding 400T within MM
b. MTC – if not exceeding 300T w/out, and 400T w/in
2. Venue:
a. If decedent is a resident of the Philippines at the time of his death, his
will shall be proved, or letters of administration granted and his estate
settled, in the province in which he resides at the time of his death
 Actual residence means place of abode, and not domicile or legal
residence (Fule v. CA)
 Residence for purposes of fixing the venue of action in S1, R73
means actual residence or physical habitation without regard to
animus revertendi (San Luis v. San Luis, 2007)
b. If decedent a non-resident, in any province in which he had estate.
3. Initiatory pleading in probate proceedings
a. Testate: (takes preference over an intestate proceedings)
i. Petition for allowance of will and for letters testamentary if there is an
executor appointed in the will
ii. Petition for allowance of will and for letters of administration with the
will annexed, in case there is a will but there is no executor named in
the will or the executor appointed in the will is incompetent, refuses
the appointment or fails to give a bond
b. Intestate: a petition for letters of administration
4. Administrator is appointed by the court to administer the estate where the
decedent died intestate
a. Where the will was void and not allowed to probate
b. Where no executor was named in the will
c. the executor named therein is incompetent, refuses the trust or
d. Fails to give a bond
5. Preferential jurisdiction – the court first taking cognizance of the settlement
of the estate of a decedent shall exercise jurisdiction to the exclusion of all
other courts (S1,R73 meant venue). Applies only to a non-resident decedent.
6. Challenge of venue
a. It can only be question on appeal, but certiorari under R65 may be
resorted to if the impropriety of the venue appears on the record.
7. S2, R73.
a. Where estate is settled upon dissolution of marriage by death of the
husband or the wife, the community property shall be inventoried,
administered and liquidated, and the debts thereof paid in the testate or
intestate proceedings of the deceased spouse.
b. If both spouse have dies, the conjugal partnership shall be liquidated in
the testate of intestate proceedings of either.

B. Summary Settlement of Estates (R74)

1. Meaning – The summary settlement of estate (testate or intestate) whose
gross value does not exceed P10,000 in the MTC.
2. Procedure
a. Filing of a petition with the MTC showing that the gross value of the
estate does not exceed P10T
REMEDIAL NOTES for 2019 BAR 1
 b. Publication of a notice of hearing once a week for 3 consecutive weeks in
a newspaper of general circulation in the province.
c. Hearing on the petition shall be held not less that 1 month nor more than
3 months from the date of the last publication of the notice and after such
notice to interested persons as the court may direct.
d. The court may proceed summarily without the appointment of an
executor or administrator to grant if proper, the allowance of the will, the
determination of the heirs and the persons legally entitled of debts to
divide and distribute the estate.

3. Extrajudicial settlement of estates (S1, R74)

a. Requirements
i. That the decedent left no will and no debts
ii. The heirs are all of age or the minors are represented by their judicial
or legal representatives duly authorized for the purpose.
b. Procedure
i. Parties may divide the estate among themselves by means of a public
instrument filed with the RD and should they disagree, they may do so
in an ordinary action of partition.
ii. If there is only one heir, he may adjudicate to himself the entire estate
by means o an affidavit filed with the RD (Affidavit of Self-
adjudication)
iii. Parties to the extrajudicial settlement (whether by public instrument
or by stipulation in a pending action for partition, or the sole heir who
adjudicates the entire estate to himself by means of an affidavit) shall
file a bond with the RD in an amount equivalent to the value of the
personal property involved.
iv. The fact of the extrajudicial settlement or administration shall be
published in a newspaper of general circulation in the province once a
week for 3 consecutive weeks (1x3)
c. Registration with the RD
i. Where the estate consists only of personal property, there is still a
need to filed the extrajudicial settlement with the RD but for file
purposes only.
ii. For real property, the instrument should be registered pursuant to
S86 of the Property Registration Decree.
d. The extrajudicial settlement shall not be binding upon any person who
has not participated therein or had no notice thereof.
e. The bond is required only if there is personal property in the decedent’s
estate. It is filed simultaneously and as a condition precedent to the filing
of the public instrument. Or stipulation in the action for partition or of the
affidavit in the register of deeds. The bond is conditioned upon the
payment of any just claim under S4 R74
f. If no creditor files a petition for letters of administration within 2 years
after the death of the decedent, it shall be presumed that decedent left no
debts. (Rebuttable presumption)
g. If within 2 yrs after an extrajudicial settlement
i. An heir is unduly deprived of his lawful participation in the estate,
such heir may compel the settlement of the estate in the courts
 This involves the cancellation of the partition and the making of a
new division, unless such heir agreed to be paid the value of his
participation (Manuel v. Moran)
ii. There shall appear debts outstanding against the estate or that an heir
has been unduly deprived of his lawful participation payable in money

REMEDIAL NOTES for 2019 BAR 2

  Court may after hearing settle the amount of such debts and order
how mush and in what manner each distributes shall contribute in
the payment thereof, may issue execution against the bond or the
real estate, or both
 Procedure is not to cancel the partition but for the court to fix the
amount of the lawful participation
iii. If on the date of the expiration of the 2-yr period the person
authorized to file a claim is a minor or mentally incapacitated or is in
prison or outside of the Philippines, he may present his claim within a
year after such disability is removed. (S5)
iv. The RD shall annotate on the proper title the 2-yr lien mentioned in
S4. Upon the expiration of the 2-yr period and presentation of a
verified petition by the registered heirs, devisees or legatees or any
other party in interest that no claim of any creditor, heir, or other
person exists, the RD shall cancel the 2-yr lien noted on the title
without the necessity of a court order.
v. The 2-yr period is deemed commenced not from the date of execution
of the instrument but from the date of registration, since it is
registration that gives constructive notice to 3rd persons of the
existing settlement of estate.
vi. Remedy of deprived heirs after the expiration of the 2-yr period after
the settlement and distribution
 Action for reconveyance based on implied trust under Art. 1456.
This should be brought within 10 years from the registration of
the title, and provided that the property has not been reacquired
by an innocent purchaser for value.

4. Allowance or Disallowance of will (R76)

a. Who may be petitioners
i. Executor, devisee or legatee named in a will, or any other person
interested in the estate, may at any time after the death of the testator
petition the court having jurisdiction to have the will allowed
ii. The testator himself, may during his lifetime, petition the court for the
allowance of the will. (Ante-mortem probate)
iii. One who has assigned or renounced his hereditary rights has no legal
interest
b. Contents of a petition for the allowance of a will
i. Jurisdictional facts
 That a person died leaving a will
 In case of a resident, he died in his residence within the territorial
jurisdiction of the court; or in case of a non-resident, that he left an
estate within such territorial jurisdiction
 Will has been delivered to the court
ii. Names, ages, and residence of the heirs, legates and devisees of the
testator or decedent
iii. Probable value and character of the property of the estate
iv. Name of the person for whom letters are prayed
v. It the will has not been delivered to the court, the name of the will’s
custodian.
c. The court shall fix a time and place for proving the will when all
concerned may appear to contest the allowance thereof, and shall cause
notice of such time and place to be published 3 weeks successively,
previous to the time appointed in a newspaper of general circ in the
province.

REMEDIAL NOTES for 2019 BAR 3

 i. No newspaper publication shall be made if the petitioner is the
testator himself.
d. Personal notice is required of the time and place fixed for proving the will
to be addressed to the designated or other known heirs, legatees, and
devisees of the testator resident at their places of residence, and
deposited in the post office with the postage thereon prepaid at least 20 d
before the hearing, if such places of residence be known. (S4, R76)
i. Personal service of copies of the notice at least 10d before the hearing
shall be equivalent to mailing.
ii. Personal service shall be sent only to the compulsory heirs (ant-
mortem probate)
iii. There must be a showing of compliance with the provisions of S3 and
S4 re: publication and notice.
iv. Mere publication of notice is enough when heirs, legatees and
devisees and the executor are not known or the address given in the
petition is wrong
 Where such addresses are known, personal and individual notice
to them is mandatory and jurisdictional.

e. Proof for the allowance of a will

i. Where will is uncontested
 The required proof in a notarial will.
 The testimony of one of the subscribing witnesses only, if such
witness testify that the will was executed as is required by law
 If the subscribing witness does not reside in the province,
deposition and a photocopy be presented to the witness on
examination
 If subscribing witnesses are dead, insane, or do not reside in
the Phils, testimony of other witnesses may be admitted to
prove the sanity of the testator and the due execution of the
will.
1. As evidence of the execution of the will, proof of the
testator’s handwriting and of the subscribing witness or
any of them may be admitted (S8, R76)
 Holographic will
 Testimony of one witness who knows the handwriting and
signature of the testator and who explicitly declares that the
will and the signature are in the testator’s handwriting.
 Expert testimony may be resorted to in the absence of such
 Where testator himself petitions for the probate of his
holographic will, the fact that he affirms that the holographic
will and the signature are in his own handwriting shall be
sufficient evidence of the genuineness and due execution (S12)
ii. If will contested
 Notarial will
 ALL the subscribing witnesses and the notary public, if present
in the Phils., and not insane must be produced and examined
and the death, absence of incapacity of any of them must be
satisfactorily shown to the court.
1. If they are outside the province, deposition
2. If any or all of them testify against the due execution, or do
not remember having attested to it, or of doubtful
credibility, will may be allowed if court satisfied from the

REMEDIAL NOTES for 2019 BAR 4

 testimony of other witnesses and from all the evidence
presented that the will was executed and attested to
 Holographic
 At least 3 witnesses who know the handwriting of the testator
explicitly declare that the will and the signature are in the
testator’s handwriting.
 Expert testimony, in the absence of any competent witness and
if the court deem it necessary
 In Ante-mortem probate, the burden of disproving the
genuineness and due execution shall be on the contestant.
 To contest a will means to challenge the authenticity thereof,
otherwise, testimony of one competent witness is enough.
(Azaola v. singson)

f. Proof in case of lost or destroyed will

i. Notarial will
 Foundational evidence
 Execution and validity of the will
 Existence of the will at the time of the testator’s death, or that
the same was fraudulently or accidentally destroyed during the
testator’s lifetime without his knowledge
 Secondary evidence – at least 2 credible witnesses by which the
provisions of the will are clearly and distinctly proved. A
photocopy of the will is admissible

ii. Holographic Will

 Foundational evidence
 Execution and validity of the will
 Existence of the will at the time of the testator’s death, or that
the same was fraudulently or accidentally destroyed during the
testator’s lifetime without his knowledge
 Secondary evidence
 a photocopy is admissible to prove a lost or destroyed
holographic will
 testimonial evidence is not admissible (because o the great risk
of fraud or mistake)

g. Disallowance of will
i. Grounds (MUDIFIE) – the presence of any of the above circumstances
renders the will void.
 If not executed and attested as required by law
 If the testator was insane or otherwise mentally incapable to make
a will at the time of its execution
 If it was executed under duress, or the influence of fear, or threats
 If it was procured by undue and improper pressure and influence,
on the part of the beneficiary, or of some other person for his
benefit
 If signature of the testator was procured by fraud
 If 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

ii. In probate proceedings, the court can pass only upon the


REMEDIAL NOTES for 2019 BAR 5

  Probate proper
 Extrinsic validity of the will ( whether the will complied with
the formalities prescribed by law)
 Testamentary capacity of the testator
1. Intrinsic validity will only be passed during the stage of
determination of the heirs and the distribution of the
estate.
2. Xpn: where defect of will is apparent on its face and the
probate of the will would become a useless ceremony if it is
intrinsically invalid
a. E.g., devisee a paramour of decedent
3. Where the parties agree that the intrinsic validity be first
determined

 Determination of heir
 Intrinsic validity

5. Claims against the Estate (R86)

a. Money claims and non-money claims against a deceased
i. Rights and obligations of a person which are not extinguished by his
death are transmitted to his heirs by operation of law or by will
ii. Under R88-90, money debts are properly speaking not transmitted to
the heirs nor paid by them. The estate pay them. What is left after the
debts are paid is transmitted to the heirs.
 Money claims are subject to statute of non-claims which is
summary in nature
 Non-money claims are threshed out in a separate action
b. Money claims (CFSJ)
i. All claims for money against the decedent arising from contract,
express or implied, whether the same be due not due or contingent
 Do not include those arising our of crime or quasi-delict
ii. All claims for funeral expenses
iii. All claims for expenses for the last sickness of the decedent
iv. Judgment for money against the decedent (S5, R86)
c. Claims not among those referred to in S5, R86 should be filed against the
executor of administrator (S1, R87). Actions to recover against any of the
following may be commenced against him:
i. Real or personal property or any interest therein
ii. From the estate, or
iii. To enforce a lien thereon
iv. Damages for any injury to person of property, real or personal

d. Where and within what time should a money claim be filed?

i. Should be filed before the probate court and within the time stated in
the notice which the probate court shall issue immediately after
granting letters.
ii. Should not be less than 6 months nor more that 12 months after the
date of the first publication of the notice Statute of non-claims
iii. Every executor or administrator shall immediately after the notice to
creditors is issued, cause the same to be published 3 weeks
successively in a newspaper of general circ in the province and to be
posted for the same period in 4 public places in the province and in 2
public places in the municipality where the decedent last resided.

REMEDIAL NOTES for 2019 BAR 6

 iv. If not timely set up, barred forever. However, they may be set forth as
counterclaims in any action that the executor or administrator may
bring against the claimants.
 Xpn:
 Tardy claim – at any time before an order of distribution is
entered, a creditor who has failed to file his claim within the
time previously limited, the court may for a cause shown and
on such terms as are equitable, allow such claims to be filed
within a time not exceeding one month
 Two-step process:
1. Motion for leave to file a tardy claim
2. If motion is granted claimant files the tardy clam within a
period of 1 month from notice of the order of the court
granting the leave to file the tardy claim
 The substitution of the deceased in the civil action by the
administrator or the decedent’s representative is generally
considered as equivalent to the presentation of the claim with the
probate court.
 A money claim cannot be enforced by a writ of execution but
should be instead filed as a money claim (SC)
 S7, R141 relied upon by the RTC judge covers only money claims
against an estate not based on judgment.

e. Three options for mortgagee-creditor

i. Abandon
ii. Foreclose. Not a money claim. But if there is deficiency, the claim
thereon may be filed as a money claim with the probate court.
iii. Rely. Solely upon his mortgage and foreclose it within the prescriptive
period of 10 years from the accrual of the right of action. (without
deficiency

6. Actions by and Against Executors and Administrators (R87)

a. Actions which may be brought against the executor or administrator
i. Actions to recover real or personal property from the estate
ii. Actions to enforce a lien on real or personal property
iii. Actions to recover damages for an injury to person or property

7. Payment of the Debts of the Estate (R88)

a. The testator may in his will designate the part of the estate from which
the debts shall be paid or make provision for he payment od debts.
b. Order in which the estate property is charged for the payment of debts:
i. Designated in the will
ii. Personal estate of the estate not disposed of by the will
iii. If said personal estate is not sufficient, or the sale would be
detrimental to the participants of the estate, the whole of the real
estate not disposed of by will may be sold, mortgaged or otherwise
encumbered, after obtaining the court’s authority.
 Any deficiency may be met by contributions from devisees,
legatees or heirs
c. Devisees, legatees or heirs who have entered into possession of portions
of the estate before payment of debts and expenses will become liable to
contribute for the payment of such debts and expenses. The probate court
may after hearing issue an order settling the amounts of their liabilities
(S6, R88)

REMEDIAL NOTES for 2019 BAR 7

 d. If assets which can be appropriated for the payment of the debts are not
sufficient, the executor or administrator shall pay the debts against the
estate in accordance with Art. 1059, 2239 – 2251 (CC) on preference of
credits.

8. Sales, Mortgages, and other encumbrances of property of Decedent (R89)

a. Upon the application of the E/A and on written notice to the heirs and
other persons interested, the court may order the whole or a part of the
personal estate to be sold.

9. Distribution and Partition of the Estate (R90)

a. Liquidation of Community property or conjugal partnership property
i. Liquidation is the process undertaken upon the dissolution of the ACP
or the CPG
 Inventory, paying of debts, delivering the exclusive property of the
spouses, dividing the net remainder equally
ii. Upon dissolution of marriage by death
 The ACP or CPG shall be liquidated in the same proceedings for the
settlement of the estate of the deceased spouse
 If both spouses have died, the liquidation may be effected in the
estate proceedings of either
 If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the ACP or CPG either judicially or
extrajudicially within 1 year from the death of the deceased.
 Such liquidation may be done
 judicially by an action for partition (R69)
 extrajudicial settlement (R74), provided there are no debts
 if there are debts  settlement (R73)
b. Partition and Distribution
i. Order of distribution, only after the payment of debts, estate taxes,
administration expenses, funeral charges, and the allowance to the
widow (DFEAT) – S1, R90
ii. The order shall assign the residue of the estate to the persons entitled
to the same, naming them and the proportions or parts to which each
is entitled. The order of distribution must also be at the same time a
declaration of heirs since a separate action for such declaration is not
proper.
iii. If there is a controversy before the court as to who are the lawful
heirs, it shall be heard and decided as in ordinary cases.
iv. Matters relating to the rights of filiation and heirship must be
ventilated in the proper probate court in a specpro instituted
precisely for the purpose of determining such rights.
 Xpn: if the parties voluntarily submitted the issue to the trail court
and already presented evidence as to the issue of heirship, and the
RTC had consequently rendered a judgment thereon, or when a
specpro had been instituted but had been finally closed and
terminated and hence cannot be reopened.
c. Project of partition – the heirs may by agreement submit a project of
partition to serve as basis of the order of distribution. Heirs who do not
agree thereto may submit a counter-project of partition. If approved by
court the same will serve as the basis of the order of distribution.
d. Appeal from an order of distribution
i. Appealable within 30 d from notice by filing a notice of appeal and
record on appeal with the probate court.

REMEDIAL NOTES for 2019 BAR 8

 e. An order of distribution affecting registered land should be registered
once the same becomes final. Proof of payment or exemption from estate
shall be presented to the RD as a requirement for registration. Upon
presentation of the owner’s duplicate certificate of title, new certificates
of title shall be issued to the parties entitled thereto in accordance with
the approved partition and distribution. (Sec. 92, PD 1529)
f. GR: A probate court cannot issue writs of execution. Its orders refer to the
adjudication of claims against the estate.
i. Xpn:
 Contributive shares – where devisees, legatees and heirs have
entered into possession of portions of the estate before the debts
and expenses have been settled and paid. Writs of execution may
be issued to compel them to pay shares to satisfy unpaid debts.
 Examination costs
 Partition expenses
 Surety’s liability on Bonds
g. Closure
i. After the payment of all debts and the delivery of the estate to the
heirs. The finality of the order of distribution or of the approval of the
project of partition does not yet terminate the proceedings.
ii. The order of closure may be appealed since it is a final order which
affects the substantial rights of the person appealing. 15 d by the filing
of notice of appeal.
iii. When an heir duly notified of the proceedings is not included or not
given any share, he must move for reconsideration or appeal
therefrom within 30 d from notice
iv. Failure to notify an heir, despite known address, deprives the probate
court of jurisdiction to render a valid judgment. -- > file an action to
annul judgment
v. When the heir or his address is unknown and no notice was given to
him, he can file a motion with the probate court for the delivery of his
share to re-open the proceedings if the order of closure is not yet final.
If already final, the remedy of the heir is to file an action for
reconveyance against distributes.
vi. Where the heir is given a share in the order, he may move for the
delivery of the same to him, even after the closure of the proceedings,
subject to acquisitive prescription in favor of adverse possessors.
Execution by motion or by independent action (S6, R39) is not
applicable to special proceedings.

C. ESCHEATS (R91)
1. Escheat is a special proceeding instituted by the SolGen or his representative
in behalf of the RP to obtain title over the personal or real estate of a person
who dies intestate leaving no heir or person entitled to the same.
2. Even if there is a will, if it was not allowed, his estate may be escheated if no
heir or person entitled to the estate.
3. Procedure
a. When a person dies intestate leaving no heir or person entitled to the
same, the Solicitor General in representation of the RP, may institute
escheat proceedings and file a petition with RTC/MTC of the place where
the deceased last resided on in which he had estate, for non-residents.
b. 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
be published for at least once a week for 6 successive weeks in a
newspaper of general circ

REMEDIAL NOTES for 2019 BAR 9

 c. The court shall adjudge that the estate of the deceased in the Philippines,
after the payment of debts and charges shall be escheated.
4. An heir may recover the same within 5 years from the date of judgment,
otherwise he is barred forever.
a. In such a case, the claimant shall have title to and possession of the
property. If property had already been sold, he will be entitled to the
proceeds, after deducting reasonable charges for the care of the estate.
5. An action for reversion is brought by the RP to recover properties alienated
in violation of the Constitution or of any statute.
a. CA has EOJ over actions for the annulment of judgments of the RTC.

D. GUARDIANSHIP (R92)
1. 3 kinds of guardians under the law
a. legal guardian – one who is such under the provision of law without the
need of a court appointment. E.g., father and mother shall jointly exercise
legal guardianship over the person and the property of their
unemancipated common child.
b. Guardian ad litem – appointed by the court for the purpose of a particular
action or proceeding involving a minor.
c. General guardian – appointed by the court over the person/property of
the ward to represent the latter in all his civil acts and transactions
2. Incompetent – includes persons suffering civil interdiction, hospitalized
lepers, prodigals, deaf and dumb who are unable to read and write, and those
who are of unsound mind (even with lucid intervals). Persons not being of
unsound mind but by reason of weak mind, age, disease or other similar
(WADO) causes cannot without outside aid take care of themselves and
manage their property. (S2, R92)
3. Jurisdiction and venue:
a. Over incompetents – RTC of residence of the incompetent. If non-
resident, RTC of the place of the property.
b. Over minors – Family Court of the place where the minor resides. If non-
resident with the Family court of the place where the property or part
thereof is situated
4. Appointment of Guardians (R93)
a. Any relative, friend, or other person on behalf of an incompetent who has
no parent or lawful guardian may petition (verified) the court for the
appointment of a general guardian for the person or estate or both.
i. In case of minors
 Any relative or other person on behalf of a minor
 The minor himself, if 14 yo or above
 Secretary of Social Welfare and Development and by the Sec. of
Health in case of an insane minor who needs to be hospitalized.
(S2, RGM)
b. Grounds for the appointment (DRBS)
i. Death, continued absence, or incapacity of his parents
ii. Suspension, deprivation or termination of parental authority
iii. Remarriage of his surviving parent, if the latter is found unsuitable to
exercise parental authority
iv. When the best interests of the minor so requires (S4, RGM)
c. Who may be appointed guardian?
i. In default of parents or a court-appointed guardian, the court may
appoint a guardian of the person or property, or both, of a minor,
observing as far as practicable, the following order of preference:

REMEDIAL NOTES for 2019 BAR 10

  Surviving grandparent and in case several grandparents survive
the court shall select any of them taking into account all relevant
considerations.
 The oldest brother or sister of the minor over 21, unless unfit or
disqualified
 The actual custodian of the minor over 21 unless unfit or
disqualified
 Any other person who in the sound discretion of the court would
serve the best interests of the minor.
d. Contents of the verified petition
i. Jurisdictional facts
ii. The incompetency
iii. Names, ages and residences of the incompetent’s relative and the
persons having him in their care
iv. Probable value and character of the incompetent’s estate
v. The person for whom letters of guardianship are prayed for (S2, R93)
e. A petition for the appointment of a general guardian of a minor must
allege the following:
i. Jurisdictional facts
ii. The name, age and residence of the ward
iii. Ground rendering the appointment necessary or convenient
iv. The death of the minor’s parents or the termination, deprivation or
suspension of their parental authority
v. The remarriage of the minor’s surviving parent
vi. The names, ages and residences of relatives within the 4th civil degree
of the minor and of persons having him in their care and custody
vii. The probable value, character and location of the property of the
minor
viii. The name, age and residence of the person for whom letters of
guardianship are prayed. (S7, RGM)
f. After the petition for the appointment of a general guardian is filed, the
court shall fix a time and place for hearing the same. Reasonable notice of
the hearing of the petition shall be given to the persons mentioned in the
petition including the incompetent himself. If the person liable to be put
under guardianship resides abroad but has estate in the Phils., the court
may direct that notice be given by publication or otherwise.
g. The petition may be opposed by any person, on the ground of
i. Majority of the alleged minor
ii. Competency of the alleged incompetent
iii. Unsuitability of the person for whom letters are prayed
h. At the hearing, the alleged incompetent must be present if able to attend
and it must be shown that the required notice has been given. In
guardianship over minors, the prospective ward shall be presented to the
court. In guardianship over the property of non-resident minor, the court
may dispense with the presence of the non-resident minor.
i. J/FO under R93 shall be served on the civil registrar of the municipality
where the incompetent person resides or where his property or part
thereof is situated. (S8, RGM)
j. In guardianship over minors, the final and executory judgment shall be
served upon the Local Civil Registrar of the municipality or city where the
minor resides and the RD of the place where his property or part thereof
is situated, and report the compliance to the court. (S13, RGM)
5. General Powers and Duties of Guardians (R96)

REMEDIAL NOTES for 2019 BAR 11

 a. A guardian appointed shall have the care and custody of the person of his
ward and the management of the estate, or the management of the estate
only
b. Guardian to pay debts of ward, settle all accounts and demand, sue for
and receive all debts due him or may, with the approval of the court
compound for the same and give discharges to the debtor, on receiving a
fair and just divided of the estate and effects; and appear for and
represent his ward in all actions and special proceedings.
i. They may be authorized to join in partition proceedings after hearing.
ii. Render to the court
 Within 3 months after his appointment, an inventory of the estate
of his ward, sworn to by them, and
 annually after such appointment an inventory and account
 within 3 months after such discovery, succession or acquisition, of
any property discovered or succeeded to or acquired by the ward,
not included in the inventory
 upon expiration of a year from the time of his appointment,
present his account to the court for settlement of reasonable
expenses and such compensation for his service, not exceeding
15% of the net income of the ward.

c. In general, a guardian has full authority to take possession of the property

of the ward and to perform all acts necessary for its management, and to
bring and defend such actions as may be needed for this purpose. (Caniza
v. CA)
d. Proceedings taken when a person suspected of embezzling or concealing
the ward’s property – upon complaint of the guardian or ward or of any
person having actual or prospective interest in the ward’s estate as
creditor, heir or otherwise that anyone is suspected of having embezzled,
concealed or conveyed away any money, goods or interest belonging to
the ward of his estate, the court may cite the suspected person to appear
for examination and make such order as to secure the estate. (S6, R96)
e. However, the court may not resolve the issue of title to the property. Such
controversy should be resolved in a separate ordinary action. Xpn: in the
ward’s title is clear and indisputable, in which case the court may issue an
order directing delivery or return.
6. Termination of the Guardianship (R97)
a. Guardianship is terminated upon judicial determination that person is no
longer incompetent, his competency shall be adjudged and the
guardianship shall cease (S1, R97).
i. This may be had upon verified (by oath) petition by the person
declared incompetent or his guardian, relative or friend.
ii. Court shall fix a time for hearing and cause reasonable notice to be
given to the guardian of the person so declared incompetent and to
the ward
iii. Any other person may contest the right to the relief demanded
b. A guardian may be removed or allowed to resign
i. When he becomes insane or incapable of discharging his trust or
unsuitable or has wasted or mismanaged the estate or failed for 30 d
after it is due to render an account or make a return
ii. He may resign when it appears proper to allow
 Court may appoint another in his place

c. Other termination of guardianship

i. Marriage or voluntary emancipation

REMEDIAL NOTES for 2019 BAR 12

  The minor shall be enabled to administer his property as though
he were of age, but he cannot borrow money or alienate property
without the consent of his father, mother or guardian UNLESS the
court approves the application by the ward that guardianship is no
longer necessary.

E. WRIT OF HABEAS CORPUS (R102)

1. Habeas corpus 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. (S5 & 6, R102)
2. A prerogative writ is issued by a court in furtherance of its discretionary
powers and are not granted as a matter of right.
a. WHC
b. WA
c. WHD
d. Writ of Continuing Mandamus
e. Writ of Kalikasan
3. WHC shall extend to all cases of illegal confinement or detention by which
any person is deprived of his liberty or by which the rightful custody of any
person is withheld from the person entitled thereto.
4. The writ is the order requiring the person to whom it is issued to produce
the body of the person alleged to be restrained of his liberty and to justify the
detention. The privilege of the writ is the further order inquiring into the
cause of detention and directing the release of the person if he is illegally
detained.

5. Jurisdiction – (SCARS) concurrent jurisdiction among

a. SC &
b. CA, or any of its members
c. Snd (AJ)
d. RTC
e. HC involving custody of minors - verified petition with the Family Court.
f. But may be filed in the regular courts
i. in the absence of the presiding judge of the FC, provided that the
regular court shall refer the case to the FC as soon as the presiding
judge returns to duty
ii. where there are no Family courts
iii. the writ may be made returnable to a Family Court or to any regular
court within the region where the petitioner resides or where the
minor may be found for hearing and decision on the merits.
g. Territorial extent of the enforceability of a WHC
i. SC, CA, Snd – anywhere in the Philippines
ii. RTC and MTC – within the judicial region to which they belong
h. Form of petition and contents
i. By petition signed and verified by the party for whose relief it is
intended or by some other person on his behalf, and shall set forth the
ff:
 Person subject of the application is imprisoned or restrained of his
liberty
 The officer or name of the person by whom he is imprisoned or
restrained; or if both are unknown or uncertain, such officer or
person may by described by an assumed name
 The place where he is imprisoned or restrained if known
 Copy of the commitment or detention order if it can be procured
without impairing the efficiency of the remedy; or if the

REMEDIAL NOTES for 2019 BAR 13

 imprisonment or restraint is without any legal authority, such fact
shall be stated.
i. It is the duty of a court to issue the writ if there is evidence that a person
is unjustly restrained of his liberty within its jurisdiction even if there is
not application therefor.
j. Who may file
i. The party for whose relief it is intended
ii. By some other person (any person) on his behalf
k. The WHC is not allowed, if it appears that he is in the custody of an officer
i. under process issued by the court or judge or
ii. By virtue of a judgment or order of a court of record
iii. Court or judge had jurisdiction to issue the process, render the
judgment or make order

l. Xpn: The WHC may be availed of as a post-conviction remedy in the

following cases:
i. There has been deprivation of a constitutional right resulting in
restraint of person
ii. The court had no jurisdiction to impose the sentence
iii. an excessive penalty has been imposed, as such sentence is void as to
such excess.
 It is necessary that the judgment is no longer appealable in which
case the writ is in the nature of a collateral attack against a final
but void judgment.
m. What the court may issue:
i. Preliminary citation – issued by the court to the govt officer, where
the person is detained under govt authority and the illegality of his
detention is not patent, to show cause why the writ should not issue.
ii. Peremptory writ – issued by the court when the cause of the
detention is patently illegal, requiring the unconditional production
before the court of the body of the person detained at the date and
time specified.
n. WHC may be availed of to withhold rightful custody
i. Parents may avail of the writ to obtain custody of their child against
the grandparent
ii. Wife to obtain custody of the child under 7 as against her husband.
iii. Judicial guardian unduly deprived of custody of her ward
o. The petition for custody of minors shall be filed with the Family Court of
the province or city where the petitioner resided or where the minor may
be found. (AM 03-04-04-SC)
p. Writ of Habeas Corpus involving the custody of minors – may be filed
with any of the proper RTCs within the judicial region where enforcement
thereof is sought.
q. Service of summons is not required in a HC petition. By service of the
writ, the court acquires jurisdiction.
r. Appeal – in HC cases shall be taken within 48 hours from notice of the
judgment or final order appealed from. Only a notice of appeal is
required.

F. CHANGE OF NAME (R103)

1. Jurisdiction and venue: RTC of the place where the petitioner resides.
2. What name can be changed
a. R103 covers the change of surname and middle name
b. RA 9048 covers first name and/or nickname, authorizing the local civil
registrar or the consul general to effect such change

REMEDIAL NOTES for 2019 BAR 14

 3. GR – change of name may only be effected by a judicial order (Art 412). But
RA 9048, change of first name or nickname may be done administratively.
4. Change of name (R103) v. correction of entry of name (R108)
 Official name of a person is given in the civil register
b. Any petition which seeks to change the name recorded in the civil
registry is a petition for change of name under R103.
i. Not simply a correction of a typo or clerical error, as where the name
is dishonorable or is indicative of former alienage
ii. The local civil registrar need NOT to be impleaded
iii. But a copy of the judgment order shall be furnished the civil registrar
of the city or municipality where the court issuing the same is
situated.

c. Mere correction of typographical or clerical errors in the entry of the

name which are obvious to the understanding are governed by R108.
i. The local civil registrar need to be impleaded

5. Contents of the petition for Change of Name

a. Petition shall be signed and verified by the person desiring to change his
name, or some other person in his behalf, and shall set forth:
i. The Petitioner has been a bona fide resident of the province were the
petition is filed for at least 3 years prior to the date of such filing.
ii. The cause for which the change of the petitioner’s name is sought; and
iii. The name asked for.

6. Grounds (DR DACUL) – not exclusive

a. When the name is ridiculous, dishonorable or extremely difficult to write
or pronounce
b. When the change results as a legal consequence, as in legitimation
c. When the change will avoid confusion
d. When the petitioner has been using a name for school purposes and his
school record are in such name, then his name in the civil registry may be
changed to the name that he has been using in school
e. A sincere desire to adopt a Filipino name to erase signs of former
alienage.

7. If petition is sufficient in form and substance

a. Court shall fix a date and place for the hearing, and shall direct a copy of
the order be published before the hearing at least once a wk for 3
consecutive weeks in some newspaper of general circulation published in
the province.
b. Date set for the hearing shall not be within 30d prior to an election nor
within 4 months after the last publication of notice.

8. Publication of the order of hearing under R103 is a jurisdictional

requirement. Such publication must give the correct information as to:
a. Name or names of the applicant
i. Caption must contain the applicant’s real name, his aliases or other
names, and the name sought to be adopted.
b. Cause for the change of name, and
c. New name sought to be adopted

9. The petition for adoption may include a petition for change of the adoptee’s
first name. There are not restrictions under S10 of the Rules on Adoption.

REMEDIAL NOTES for 2019 BAR 15

G. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY (R108)
1. Statutory basis of R108 is Art. 412 (CC) – no entry in a civil register shall be
changed or corrected without a judicial order
2. Entries subject to cancellation or correction (BD M LANCE JVC)
a. Births
b. Marriage
c. Deaths
d. Legal separation
e. Judgments of annulments of marriage
f. Judgments declaring marriages void from the beginning
g. Legitimation
h. Adoptions
i. Acknowledgments of natural children
j. Naturalization
k. Election, loss, recovery of citizenship
l. Civil interdiction
m. Judicial determination of filiation
n. Voluntary emancipation of a minor
o. Change of name

3. Any person interested in an act, event, order or decree concerning the civil
status of persons which has been recorded in the civil register, may be filed
thru a verified petition.

4. Parties: civil registrar and all persons who have or claim any interest
which would be affected thereby shall be made parties to the proceeding

5. R108 covers principally the correction of entries which are not merely
clerical or typographical errors. Applies to SUBSTANTIAL changes or
corrections of entries in the civil register. Secondary recourse for correction
or typo errors.
 For clerical or typographical errors, RA 9048 authorizes the
local civil registrar or the consul general to effect such corrections.
Administrative correction.

6. RTC has jurisdiction in the place where corresponding civil registry is

located.

7. Notice and publication: Upon filing of petition, the court shall fix the time and
place for the hearing and cause reasonable notice to be given to the persons
named in the petition. Order shall be published once a week for 3 consecutive
weeks in a newspaper of gen. circ in the province.

8. R108 mandate 2 sets of notices to different potential oppositors

a. 1st – given to the persons named in the petition made by impleading
them, personal notice
b. 2nd – (thru publication) given to other persons not named in the petition,
may be considered interested or affected parties, such as creditors.

9. Failure to implead the civil registrar and the parties who would naturally and
legally be affected (those who are not so, won’t) would render the
proceedings and the judgment VOID.

REMEDIAL NOTES for 2019 BAR 16

 10. Within 15d from notice of the petition of from the last date of publication, the
civil registrar and any person having or claiming any interest under the entry
whose cancellation or correction is sought may file their opposition.

11. Appeal is perfected by notice of appeal

12. R108 can serve as the appropriate adversarial proceeding by which the
applicability of the foreign judgment can be measured and tested in terms
of jurisdictional infirmities, want of notice to the party, collusion, fraud or
clear mistake of law or fact.

a. The recognition of a foreign divorce decree may be prayed for in the

petition for cancellation of the marriage entry under R108. (Corpuz v. Sto.
Tomas)
b. Fujiki v. Marinay:
i. Fujiki filed a petition in the RTC of Pasay City entitled: Judicial
Recognition of Foreign Judgment (or Decree of Absolute Nullity of
Marriage). Fujiki prayed that:
 The Japanese Family Court judgment be recognized
 The bigamous marriage between Marina yang Maekara be
declared void ab initio, and
 For the RTC to direct the LCR of QC to annotate the Japanese FC
judgment on the certificate of Marriage between Marinay and
Maekara and to endorse such annotation to the Office of the
Administator and Civil Registrar General in the NSO.
 SC:
 Since the recognition of a foreign judgment only requires proof
of fact of the judgment, it may be made in a special proceeding
for cancellation or correction of entries in the civil registry
under R108.
 a recognition of a foreign judgment is not an action to nullify a
marriage. It is an action for the Philippine courts to recognize
the effectivity of a foreign judgment.
ii. Sex change cases
 Sex change is not recognized in our laws.
 Rep. v. Cagandahan: where a person is biologically or naturally
intersex, the determining factor in his gender classification is what
the individual, upon reaching the age of majority with good reason
thinks of his or her sex.

iii. A petition for change of name and correction of entries in the civil
registry may be joined in one proceeding, if the change of name and
correction of entry are based on the same underlying facts or logically
connected to each other, and provided that all requirement of R103
and R108 are complied with. (Rep. v Cagandahan)
 Venue should follow that for the principal proceeding.

H. RA 9048 (Administrative Change of First Name/Nickname and Correction of

Clerical/Typographical Errors)
1. GR: An entry in a civil register may not be changed without judicial order.
a. Xpn: (TFDS)
i. Clerical or typographical errors (no publication)
ii. Change of first name or nickname

REMEDIAL NOTES for 2019 BAR 17

 iii. Change of day and month in the date of birth or sex where it is
patently clear that there was a clerical or typo error or mistake in the
entry. (with publication)
2. Clerical or typo error – mistake committed in the performance of clerical
work in writing, copying, transcribing or typing and entry in the civil register
that is harmless and innocuous , such as misspelled name or misspelled place
of birth, mistake in the entry of day and month in the date of birth or the sex
of the person or the like which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to other
existing record/s, provided that no correction must involve the change of
NATIONALITY, AGE or STATUS of the petitioner.

3. Grounds for changing name:

a. Ridiculous, dishonorable or extremely difficult to write or pronounce
b. Habitually and continuously used by the petitioner, and he has been
publicly known by that first name or nickname in the community
c. Creates confusion (RA 9048 IRR)

4. Any person having direct and personal interest in the correction of a clerical
or typo error in an entry an/or change of first name or nickname in the civil
registry, may file, in person, a verified petition with the LCR where the
record being sought to be corrected or changed is kept.

5. If in terms of transportation expenses, time and effort, the petitioner

cannot appear in person before the local civil registrar keeping the
documents, the petition may be filed, in person, with the LCR of the place
where the interested party is presently residing or domiciled. The two LCRs
will then coordinate to facilitate the processing of the petition.

6. For Filipino citizens abroad, they may file in person with the nearest
Philippine Consulate. Former Filipinos presently residing or domiciled
abroad cannot avail of this provision.

7. Remedy if petition is denied by the LCR or Consul General is to appeal

(within 10 working days from notice) to the civil registrar general or file the
appropriate petition with the proper court. (S7)

I. R109. APPEALS IN SPECIAL PROCEEDINGS

1. Appeal may be taken from an order or judgment: WiLCS CS
 Don’t forget to relate with S1, R41 (appeals not allowed in DID
CEPW)

REMEDIAL NOTES for 2019 BAR 18