SpecPro Part 2 Special Proceedings Judge Wagan

SPECIAL PROCEEDINGS | Victor Kenner S.
Galang
SPECIAL PROCEEDINGS
FOR FINAL EXAMINATIONS
INTRODUCTION
• Special proceeding is an application to establish the status or right of a party or a particular fact or any
remedy other than an ordinary suit in a court of justice. It is a remedy by which a party seeks to
establish a status, a right or particular fact. It does not pray for any affirmative relief for any injury
arising from a party’s wrongful act or omission. It does not state a cause of action that can be enforced
against any person.
• How is a special proceeding commenced? It is generally commenced by an application; petition or

special form of pleading as may be provided for by the particular rule or law.
• Any petition which has for its may purpose the establishment of a status, right or a particular fact may
be included as a special proceeding. Hence, Section 1 is NOT EXCLUSIVE.
• SPECIAL PROCEECING VS ORDINARY CIVIL ACTION
ORDINARY CIVIL ACTION SPECIAL PROCEEDING

An action where a party sues another for the A remedy by which a party seeks to establish a
enforcement or protection of a right or the status, a right, or a particular fact.
prevention or redress of a wrong.
Non-adversarial in nature (until the case is

Adversarial in nature concluded). It is transformed into an
adversarial proceeding when there are
oppositors to the petition.
It involves two parties (the plaintiff and the It involves one party and there is no adverse
defendant) party.
It is based on a cause of action (except that It is not based on a cause of action (except habeas
there are certain SCA that does not corpus)
contemplate a cause of action)
Initiated through a complaint or a petition Petition, application, or a special form of
pleading
SETTLEMENT OF ESTATE
OF DECEASED PERSONS
• SETTLEMENT OF THE ESTATE OF DECEASED PERSONS; SUBSTANTIVE LAW AND

RELEVANCE; Article 777 of the Civil Code provides that the rights to the succession are transmitted
from the moment of the death of the decedent. Hence, the provisions under Rules 73-90 must be
complied with for the actual transmission of the rights. Once it is complied, the rights of the heirs
retroact to the time of death of the person whose estate was settled.
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SPECIAL PROCEEDINGS | Victor Kenner S. Galang
RULES ON JURISDICTION AND VENUE
• JURISDICTION; It shall depend on the GROSS VALUE of the estate of the decedent in accordance
with B.P. 129 as amended by R.A. 7691. If the gross value of the estate is below P300,000 (outside Metro
Manila) or P400,000 (if within Metro Manila), the MTC shall have jurisdiction. Otherwise, the RTC has
jurisdiction over the same.
o Personal property; capable of manual delivery and not capable of manual delivery
o Probate court is a COURT OF LIMITED JURISDICTION. As such, it may only determine and rule
upon issues that relate to the settlement of the estate of deceased person such as the administration,
liquidation and distribution of the estate. It acts on matters pertaining to the estate but never in the
rights to property arising from contract.
• VENUE (RULE 73); (1) RESIDENCE AT THE TIME OF DEATH – if the decedent is an inhabitant of
the Philippines at the time of his death, whether a citizen or an alien. (Section 1, Rule 73). (2) PLACE
(province/city) WHERE THE DECEDENT HAD AN ESTATE – if the decedent is a non-resident of the
Philippines.
o The term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence
or domicile." This term "resides" should be viewed or understood as the personal, actual or physical
habitation of a person, actual residence or place of abode. It signifies physical presence in a place and
actual stay thereat. Garcia-Quiazon v. Belen, G.R. No. 189121, [July 31, 2013], 715 PHIL 678-691)
o Testator X was a resident of Pasay City and he was rushed to Quezon City Hospital and died
there. Where should the petition be filed? It must still be filed in Pasay City.
o A Filipino Citizen (Testator X), who has properties in the Philippines, executed a will and died
in California. Where should the petition be filed? In any courts where his properties are located
subject to the Rule of Exclusion. If there is a will, it may be probated in California and may also be
probated in the Philippines (even though it has not been admitted in the foreign court) subject to
the Rules on Venue.
o X has several houses (Tagaytay, Cebu city and Baguio City). He then eventually settled in Baguio
City. X suffered a heart attack and was rushed to St. Lukes Hospital in Quezon City. Where
should the petition be filed given that his gross estate is worth 50 million? It must be filed in
RTC of Baguio City.
o X is a resident of Canada but is a citizen of the Philippines. He was married to Y in Canada. X

has properties in the Philippines. He died in Canada and according to Y, X left no will in Canada
and in the Philippines. Where should be the petition filed? It may be filed in the proper court
(use the term proper court when the facts of the question indicate no gross value) of the place of
any portion of the estate may be located. The term proper court will depend on the gross value of
the estate.
o Objections to improper venue should be made in a MOTION TO DISMISS and before the movant
submits himself to the jurisdiction of the court. Otherwise, the ground is considered as waived.
• EFFECT OF THE DISCOVERY OF A WILL; It lies within the sound discretion of the court on whether
the intestate proceeding already commenced should be discontinued and a new proceeding under a
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separate number and title should be constituted. It must not prejudice the substantial rights of any of
the heirs or of the creditors.
o CONSOLIDATED - The intestate case should be consolidated with the testate proceeding and the
judge of the testate proceeding should continue to hear the two cases.
o REPLACED - Testate proceedings for the settlement of the estate of a deceased person take
precedence over intestate proceedings for the same purpose. Thus, if in the course of intestate
proceedings pending before a court, it is found that the decedent had left a last will, proceedings
for the probate of the latter should replace the intestate proceedings even if at that stage an
administrator had already been appointed (in the intestate), the latter being required to render final
account and turn over the estate in his possession to the executor subsequently appointed. This,
however, is understood to be without prejudice that should the alleged last will be rejected or is
disapproved, the proceeding shall continue as an intestacy. This is a clear indication that
proceedings for the probate of a will enjoy priority over intestate proceedings. (Uriarte v. Court of
First Instance of Negros Occidental, G.R. Nos. L-21938-39, [May 29, 1970], 144 PHIL 205-216). The
discovery of a document purporting to be the last will and testament of a deceased, after the
appointment of an administrator of the estate of the latter upon the assumption that he or she had
died intestate, does not ipso facto nullify the letters of administration already issued or even
authorize the revocation thereof until the alleged will has been proved and allowed by the court.
(Advincula v. Teodoro, Sr., G.R. No. L-9282, [May 31, 1956], 99 PHIL 413-418
MODES OF SETTLING THE ESTATE
A. MODES OF SETTLING THE ESTATE
1. Extrajudicial Settlement
2. Summary settlement of estate of small value;
3. Partition; and
4. Settlement of Estate (through letters testamentary or letters of administration with or without
the will annexed)
EXTRAJUDICIAL SETTLEMENT
• WHAT? An extrajudicial settlement is a cost-efficient manner of settling the estate because it is done
without court intervention. It is not however mandatory and is discretionary upon the heirs provided
that the requisites under Section 1 are present. Section 1, Rule 74 of the Rules of Court, allows heirs to
divide the estate among themselves without need of delay and risks of being dissipated. When a person
dies without leaving pending obligations, his heirs are not required to submit the property for judicial
administration, nor apply for the appointment of an administrator by the court. The appointment of an
administrator is superfluous and unnecessary. The heirs may however submit to judicial settlement if
they do not desire to resort for good reasons to an ordinary action of partition.
• REQUISITES
1. The decedent died intestate (no will);

2. The estate has no outstanding debts at the time of the settlement;
3. The heirs are all of legal age, or the minors are represented by their judicial guardians or legal
representatives;
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4. The settlement is made in a public instrument or affidavit of self-adjudication duly filed with the
register of deed;
5. The fact of such extrajudicial settlement must be published in a newspaper of general circulation
in the province once a week for three consecutive weeks.
6. A bond, equivalent to the value of personal property, posted with the Register of deeds is required.
• FORMS OF EXTRAJUDICIAL SETTLEMENT
1. PUBLIC INSTRUMENT – if the decedent left more than one heir; the public instrument must be
filed in the office of the register of deeds. It must be in own language (English or Filipino) and must
be acknowledged before a Notary Public.
2. AFFIDAVIT OF SELF-ADJUDICATION - If there is only one heir, he may adjudicate to himself the
entire estate by means of an affidavit filed in the office of the register of deeds or through an
affidavit of self-adjudication (allowed only if he is the sole heir to the estate). It shall only be proper
when he is the sole heir to the estate. Hence, a surviving spouse who adjudicated to herself the
estate through an affidavit is not legal because the fact that there is a pending judicial proceeding
for the settlement of the estate would suggest that there is doubt as to whether she is indeed the
sole heir to the estate. Her sale then to a third person is not legal.
3. ORDINARY ACTION OF PARTITION - If they disagree, they may do so in an ordinary action of

partition under RULE 69. (Section 1, Rule 74) When the heirs disagree as to the partition of the estate
and no extrajudicial settlement is possible, then an ordinary action for partition may be resorted
to. Where the more expeditious remedy of partition is available to the heirs, then the heirs or
majority of them may not be compelled to submit to administration proceedings.
4. ORAL PARTITION – valid because Section 1 does not require it to be in written instrument or
other formality
• OTHER REQUIREMENS;
o The publication shall be necessary so that the two-year bar period under Section 4 of Rule 74 shall
commence. (double check)
o When all the conditions for an extrajudicial settlement are present, can you convert the
proceedings to an intestate proceeding for the appointment of an administrator? As a general
rule, it cannot be done. The exception is when there is a good reason. The court will determine who
shall be appointed as administrator.
o May a petition for issuance of letters of administration be converted into an action for
JUDICIAL PARTITION? Yes. The basis for the conversion is Section 1 of Rule 74 where it provides
that in cases where the heirs disagree as to the partition of the estate and no extrajudicial settlement
is possible, then an ordinary action for partition may be resorted to. Nor can we sustain petitioner's
argument that the order of the trial court converting an action for letters of administration to one
for judicial partition has no basis in the Rules of Court, hence procedurally infirm. The basis for the
trial court's order is Section 1, Rule 74 of the Rules of Court. It provides that in cases where the
heirs disagree as to the partition of the estate and no extrajudicial settlement is possible, then an
ordinary action for partition may be resorted to, as in this case. We have held that where the more
expeditious remedy of partition is available to the heirs, then the heirs or the majority of them may
not be compelled to submit to administration proceedings. The trial court appropriately converted
petitioner's action for letters of administration into a suit for judicial partition, upon motion of the
private respondents. No reversible error may be attributed to the Court of Appeals when it found
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the trial court's action procedurally in order. (Avelino v. Court of Appeals, G.R. No. 115181
(Resolution), [March 31, 2000], 385 PHIL 1014-1022)
o If there is an intestate proceedings, a project of partition may done done or is allowed. But when
there are claimants, there can be no extrajudicial partition.
• GENERAL RULE: No extrajudicial settlement shall be binding upon any person who has not
participated therein or had no notice thereof. (Section 1, Rule 74)
o The provision of Section 4 of Rule 74 barring distribute or heirs from objecting to an extrajudicial
partition after the expiration of two years from such extrajudicial partition is applicable only to
persons who have participated or taken part or had notice of the extrajudicial partition and when
the provisions of Section 1 of Rule 74 have been strictly complied with. The publication under
Section 1 of Rule 74 does not constitute constructive notice to persons who have no knowledge or
had not participated in the extrajudicial settlement.
• DISTINCTION BETWEEN EXTRAJUDICIAL SETTELEMENT AND SUMMARY SETTLEMENT

OF ESTATES OF SMALL VALUE
EXTRAJUDICIAL SETTLEMENT SUMMARY SETTLEMENT

It does not require court intervention It requires summary court adjudication
Applicable where the gross value of the estate is
The value of the estate is immaterial P10,000.00 (must not exceed the amount). The
amount is jurisdictional
Allowed only in intestate succession (there must Allowed in both testate and intestate estates
be no will left by the decedent)
Proper where there are no outstanding debts of
the estate at the time of the settlement. Available if there are debts.
Instituted by any interested party and even by a
Instituted by agreement of all heirs. creditor of the estate, without the consent of all
the heirs.
SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE
• SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE; It is a summary proceeding for the

settlement of the estate of a deceased person whether he died with or without a will if the gross value
of the estate is P10,000 and below without the need of an appointment of an administrator or executor.
• JURISDICTION – exclusive with the MTC (because of its gross value).
• REQUISITES
1. A petition must be filed by either the heirs, creditors or other interested persons with the MTC.
2. The petition must allege that the gross value of the estate of a deceased person (whether he died
testate or intestate) does not exceed P10,000.00;
3. The petition must be published in a newspaper of general circulation in the province once for three
consecutive weeks;
4. Notice must be given to the other interested persons as may be directed by the court;
5. A bond must be filed before the court in the amount determined also by the court; (Section 3, Rule
74) and
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6. A proper hearing, which shall be held not less than one (1) month nor more than three (3) months
from the date of the last publication of a notice.
• REMEDIES OF AGGRIVED PARTIES AFTER THE EXTRAJUDICIAL OR SUMMARY

SETTLEEMNT OF ESTATE; PERIOD TO FILE A CLAIM UNDER SECTION 4; An heir or interested
person who was able to participate (those who participated, took part in, or had notice of the settlement
of the estate) either in the extrajudicial or summary settlement of estate of the decedent has a period of
two years after the settlement and distribution to assail its validity. Publication under Rule 74 is not
constructive notice to those heirs or interested persons who had no knowledge or did not take part in
it.
o EXCEPTION; IN CASE OF MINOR: If on the date of the expiration of the period of two (2) years
prescribed in the preceding section the person authorized to file a claim is a minor or mentally
incapacitated, or is in prison or outside the Philippines, he may present his claim within one (1)
year after such disability is removed. (Section 5, Rule 74)
o Three instances when an heir may be COMPELLED TO SETTLE the decedent’s estate in court
1. There has been undue deprivation of lawful participation on the estate on the part of an heir
or other interested person;
2. There exist debts against the estate; or
3. There has been undue deprivation of lawful participation payable in money on the part of an
heir or other interested person.
• What if a compulsory heir was omitted? He may file a claim within 2 years from the
publication and may compel settlement (if intestate) and prove that he was duly deprived of
his share.
• What if afterwards, they did not agree on how to divide? Action for the approval for partition.
PARTITION
• Once the decedent dies, the heirs are already considered as co-owners and may cause the partition of
the estate. It is a real action because it involves interest in a real property. There is no issue of possession
or ownership but only an ASSERTION OF INTEREST. This is in consonance with the substantive law
which says that they cannot remain in co-ownership. Publication is not required and persons
prejudiced shall have their remedies.
SETTLEMENT OF ESTATE
SETTLEMENT OF THE ESTATE
• TESTATE (IF THERE IS A WILL) – PETITION FOR PROBATE
• INTESTATE (IF THERE IS NO WILL) – PETITION FOR THE ISSUANCE OF LETTERS OF

ADMINISTRATION
• Where the deceased did not leave a will, the proceeding is intestate. On the other hand, if there is a will,
the proceeding is testate and the probate of a will is mandatory. The same takes precedence over
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intestate proceedings and the institution of intestate proceeding in another place may not proceed
while the probate of a purported will of the deceased is pending in another place.
• Particularly, in the settlement of estate, it is a remedy to establish the fact of death and the right to the
property.
TESTATE PROCEEDINGS
1. PROBATE OR ALLOWANCE OF WILLS (FOR TESTATE; IF THERE IS A WILL); The rule is that if
there is a will, it must be probated. Probate is the act of proving in court a document purporting to be
the last will and testament of a certain deceased person for the purpose of its official recognition,
registration and carrying out its provision in so far as they are in accordance with law. Until admitted
to probate, a will has no effect and no right can be claimed thereunder. The probate or allowance of
will is necessary and mandatory.
• Is there an instance where a trustee may be appointed even if there is a will? Yes. (1) When trust
existed before the death; and (2) Trust is mentioned in the will
• DUE EXECUTION OF WILLS; Subject to the right of appeal, such allowance of the will shall be
conclusive as to its due execution (EXTRINSIC VALIDITY). (Section 1 of Rule 75)
IT COVERS THE FOLLOWING:
1. The will was executed in accordance with the strict formalities of the law;
2. The testator was of sound and disposing mind at the time of the execution of the will;
a. Nature of the estate – a testator must have fairly accurate knowledge of what he owns.
b. Objects of the bounty – the testator should know under ordinary circumstances who his
relatives in the most proximate degrees are;
c. Character of the testamentary act
3. Consent is not vitiated by any duress, fear or threats;
4. The will was not procured by any undue influence from the beneficiary or by some other
person for his benefit; and
5. The signature of the testator is genuine
• Case of Nuguid vs Nuguid
PROBATE OF WILL; COURT'S AREA OF INQUIRY LIMITED TO EXTRINSIC VALIDITY OF

WILL; WHEN COURT MAY RULE ON INTRINSIC VALIDITY; CASE AT BAR. — In a
proceeding for the probate of a will, the court's area of inquiry is limited to an examination of, and
resolution on, the extrinsic validity of the will; the due execution thereof; the testatrix's
testamentary capacity; and the compliance with the requisites or solemnities prescribed the by law.
In the case at bar, however, a peculiar situation exists. The parties shunted aside the question of
whether or not the will should be allowed probate. They questioned the intrinsic validity of the
will. Normally, this comes only after the court has declared that the will has been duly
authenticated. But if the case were to be remanded for probate of the will, nothing will be gained.
In the event of probate or if the court rejects the will, probability exists that the case will come up
once again before this Court on the same issue of the intrinsic validity or nullity of the will. The
result would be waste of time, effort, expense, plus added anxiety. These practical considerations
induce this Court to meet head-on the issue of the nullity of the provisions of the will in question,
there being a justiciable controversy awaiting solution.
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SUCCESSION; PRETERITION; OMISSION OF NAMES OF FORCED HEIRS. — The deceased

left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending time
— her parents. Her will does not explicitly disinherit them but simply omits their names altogether.
Said will rather than he labelled ineffective disinheritance is clearly one in which the said forced
heirs suffer from preterition.
The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced
heirs in the direct ascending line — her parents, now oppositors Felix Nuguid and Paz Salonga
Nuguid. And, the will completely omits both of them: They thus received nothing by the testament;
tacitly, they were deprived of their legitime; neither were they expressly disinherited. This is a clear
case of preterition. Such preterition in the words of Manresa "anulará siempre la institución de
heredero, dando carácter absoluto a este ordenamiento," referring to the mandate of Article 814,
now 854 of the Civil Code.9 The one- sentence will here institutes petitioner as the sole, universal
heir — nothing more. No specific legacies or bequests are therein provided for. It is in this posture
that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. (Nuguid v. Nuguid,
G.R. No. L-23445, [June 23, 1966], 123 PHIL 1305-1317)
• DUTY OF CUSTODIAN AND THE EXECUTOR; Every time there is a NOTARIAL or

HOLOGRAPHIC WILL, it must always be given to the court.
A. CUSTODIAN
The person who has custody of a will shall, within twenty (20) days after he knows of the death
of the testator, deliver the will to the court having jurisdiction, or to the executor named in the
will. (Section 2, Rule 75) Hence, a person may be compelled by the named executor to produce
a copy in his possession to be submitted to the probate court.
B. EXECUTOR - A person named as executor in a will shall, within twenty (20) days after he
knows of the death of the testate, or within twenty (20) days after he knows that he is named
executor if he obtained such knowledge after the death of the testator, present such will to the
court having jurisdiction, unless the will has reached the court in any other manner, and shall,
within such period, signify to the court in writing his acceptance of the trust or his refusal to
accept it. (Section 3, Rule 75)
C. FAILURE TO PRODUCE THE WILL
1. FINE FOR NEGLECT - a person who neglects any of the duties required in Sections 2 and
2 without excused satisfactory to the court shall be fined not exceeding two thousand
pesos. (Section 4, Rule 75)
2. COMMITTED TO PRISON - a person having custody of a will after the death of the
testator who neglects without reasonable cause to deliver the same, when ordered so to
do, to the court having jurisdiction, may be committed to prison and there kept until he
delivers the will. (Section 5, Rule 75)
• In order for Sections 4 and 5 to apply, the court must be acting in the exercise of its
jurisdiction over the administration of the estates of deceased persons.
• The remedy of mandamus cannot be used as remedy to compel the production of the
original will because there is another plain, speedy and adequate remedy in the
ordinary course of law as provided in Sections 2 to 5 of Rule 75.
2. PROVING AND ALLOWANCE OF WILL;
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• WHO AND WHEN; PETITION FOR THE ALLOWANCE OF WILL; Any of the following may
petition, at any time after the death of the testator or during the lifetime of the testator, before the
court having jurisdiction to have the will allowed. They may file the petition whether the will be
in his possession or not, or is lost or destroyed.
1. EXECUTOR named in the will;

2. DEVISEE named in the will;
3. LEGATEE named in the will;
4. Any OTHER PERSON INTERESTED in the estate; or the
5. TESTATOR during his lifetime. (Section 1, Rule 76)
o PERSON INTERESTED IN THE ESTATE – one who would be benefited by the estate such as
an heir or one who has a claim against the estate like a creditor. (Sumilang v. Ramagosa, G.R. No.
L-23135, [December 26, 1967], 129 PHIL 636-641)
• ACQUISITION OF JURISDICTION; It may be acquired through the following:
1. Filing of the original petition and compliance with Sections 3 (publication requirement) and 4
(notice to the heirs, devisees, legatees or executors) of Rule 76 of the Rules of Court (there must be an
attachment of a copy of the will to the petition); or
2. Delivery of the will to the court even if no petition is filed; (Sections 3, Rule 76)
• CONTENTS OF THE PETITION; A petition for the allowance of a will must show, so far as
known to the petitioner:
1. The jurisdictional facts

2. The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;
3. The probable value and character of the property of the estate;
4. The name of the person for whom letters are prayed;
5. If the will has not been delivered to the court, the name of the person having custody of it.
(Section 2, Rule 76)
o Jurisdictional facts refer to the (1) fact of death of the decedent, his (2) residence at the time of
his death in the province where the probate court is sitting, or if he is an inhabitant of a foreign
country, the (3) estate he left in such province.
• LOST OR DESTROYED WILL; A petition for allowance of a will shall be allowed even if the will
has been destroyed or lost.
o FOUR FACTS should be proved in order that a lost or destroyed will may be allowed:
a. The will has been duly executed by the testator;
b. The will was in existence when the testator died, or
c. If it was not, that it has been fraudulently or accidentally destroyed in the lifetime of the
testator without his knowledge (show the cause); and
d. The provisions of the will are clearly established by at least two competent and
disinterested witnesses.
o The first and third facts constitute secondary evidence in lieu of the original of the will. But
before secondary evidence may be admitted, the loss of the will should be proved.
o Section 6 applies to a lost or destroyed notarial will and not to a holographic will.
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• GROUNDS FOR DISALLOWING A WILL; The will shall be disallowed in any of the following
cases:
1. If not executed and attested as required by law;

2. If the testator was insane, or otherwise mentally incapable to make a will, at the time of its
execution;
3. If it was executed under duress, or the influence of fear, or threats;
4. 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;
5. If the signature of the testator was procured by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing his signature thereto.
• NO CONTEST OF THE WILL - If there be no contest to the allowance of the will or there is no
opposition to the probate of the will, the evidence of the petitioner may be received ex parte.
o NOTARIAL WILL - If no person appears to contest the allowance of the will, the court may
grant allowance thereof on the testimony of one of the subscribing witnesses only, if such
witness testify that the will was executed as is required by law.
o HOLOGRAPHIC WILL - it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the will and the signature are
in the handwriting of the testator. In the absence of any such competent witness, and if the
court deems it necessary, expert testimony may be resorted to. (Section 5, Rule 76)
o Where the testator himself petitions for the probate of his holographic will and no contest is
filed, the fact that he affirms that the holographic will and the signature are in his own
handwriting, shall be sufficient evidence of the genuineness and due execution thereof.
o LOST OR DESTROYED NOTARIAL OR HOLOGRAPHIC WILL - Section 6 provides for the

requisite quantum of evidence to prove a lost or destroyed notarial will in the absence of
contest, and constitutes an exception to the rule on secondary evidence in Sec. 5, Rule 130. The
witnesses required need not be attesting witnesses (although the testimony of the latter would
be entitled to greater weight).
• THERE IS A CONTEST; Anyone appearing to contest the will must state in writing (WRITTEN
OPPOSITION) his grounds for opposing its allowance, and serve a copy thereof on the petitioner
and other parties interested in the estate. (Section 10, Rule 76)
If the will is contested, the following rules shall be observed;
o NOTORIAL WILLS - In the case of a contested notarial will, it is the duty of the petitioner to
produce all the available attesting witnesses and the notary public, but he is not concluded by
the testimony of said witnesses, even if adverse, as the court may still admit the will to probate
on the basis of other satisfactory evidence (Fernandez vs. Tantoco, 48 Phil. 380).
§ All the subscribing witnesses and the notary in case of wills executed under the Civil Code,
if present in the Philippines and is not insane, must be produced and examined, and the
death, absence, or insanity of any of them must be satisfactorily shown to the court.
§ If the witnesses are outside the province where the will has been filed, their deposition
must be taken.
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§ If any or all of them testify against the due execution of will, or do not remember having
attested to it, or are otherwise of doubtful credibility, the will may nevertheless be allowed
if the court is satisfied from the testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the manner required by law. What is
decisive is that the court is convinced by evidence before it, not necessarily from the
attesting witnesses, although they must testify, that the will was or was not duly executed
in the manner required by law. (Baltazar v. Laxa, G.R. No. 174489, [April 11, 2012], 685
PHIL 484-504)
§ This is an exception to the rule that a party is generally bound by the testimony or evidence
that he presents, because here, unlike ordinary actions, he has no choice in the evidence as
he is duty-bound to account for all the attesting witnesses. It has been held that the
testimony of the notary before whom the will was acknowledged will prevail over that of
the two attesting witnesses who claim undue execution of the will (Ramos, et al. vs. CA, et
al., L-40804, Jan. 81, 1978).
o HOLOGRAPHIC WILL - at least three (3) witnesses who know the handwriting of the testator
explicitly declare that the will and the signature are in the handwriting of the testator; in the
absence of any competent witnesses, and if the court deems it necessary, expert testimony may
be resorted to. (Section 11, Rule 76)
§ In the case of a holographic will, it is not mandatory that witnesses be first presented before
expert testimony may be resorted to, unlike notarial wills wherein the attesting witnesses
must first be presented or accounted for (Azaola vs. Singson, 109 Phil. 102; see also Sec. 8).
This is so because holographic wills are not required to be witnessed and the existence of
a qualified witness may be beyond the control or knowledge of the proponent of the will.
(REGALADO, pg. 34-35)
§ Where the testator himself petitions for the probate of his holographic will and the will is
contested, the burden of disproving the genuineness and due execution thereof shall be on
the contestant. The testator, may in his turn, present such additional proof as may be
necessary to rebut the evidence for the contestant. (Section 12, Rule 76)
3. LETTERS OF TESTAMENTARY TO EXECUTOR – the executor is the person/s named in the will to
administer the decedent’s estate and carry out the provisions thereof (to administer, settle and liquidate
the estate) OR the person appointed by the court. When a will has been proved and allowed, the court
shall issue letters testamentary thereon to the person named as executor therein, if; (1) competent; (2)
accepts the trust; and (3) gives the bond as required by Rule 81. (Section 4, Rule 78)
• If the executor is named, then he must accept. If there is refusal, the court shall appoint a new
administrator. Upon acceptance, the bond requirement must be fulfilled (check the exception when
no bond is allowed by virtue of the testator – Section 2, Rule 81)
• It is possible that there may be TWO OR MORE EXECUTORS.
• OPPOSITION; Any person interested in a will may state in writing the grounds why letters
testamentary should not issue to the persons named therein as executors, or any of them. There
will be a notice to the parties and the court shall pass upon the sufficiency of such grounds. A
petition may, at the time, be filed for letters of administration with the will annexed. (Section 1, Rule
79)
• AUTHORITY ISSUED BY THE COURT
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1. Letters testamentary – authority issued to the executor named in the will to manage and
administer the estate (WILL + EXECUTOR WAS NAMED)
2. Letters of Administration with the will annexed – authority issued if the executor named in the
will refuses to accept the office or is incompetent or failed to give a bond; (THERE IS WILL +
EXECUTOR WAS NOT NAMED OR EXECUTOR NAMED REFUSED, INCOMPETENT OR
NO BOND) or
3. Letters of Administration – authority issued when the decedent died intestate or when the will
is void. (NO WILL OR WILL IS VOID)
• REQUIREMENTS FOR AN EXECUTOR:
1. At least eighteen (18) years old;

2. A resident of the Philippines; and
3. The court deems such person as fit.
• INCOMPETENT EXECUTORS OR ADMINISTRATORS
1. Minor;
2. Not a resident of the Philippines; and
3. Is in the opinion of the court unfit to execute the duties of the trust by reason of (DIWO);
Drunkenness – a degree wherein it would impair a person’s sound judgment and reason that
would necessarily affect the person’s integrity and honesty; Improvidence – unwise or ill-
advised spending; Want of understanding – a person’s inability to know the nature and
functions; Want of integrity – connotes lack of credibility which affects his honesty in the
management of the estate; or Reason of conviction of an offense involving moral turpitude –
not all criminal offenses involve moral turpitude (Section 1, Rule 78)
o The list under Section 1 is not exclusive; adverse interest is a ground for disqualification
4. LETTERS OF ADMINISTRATION WITH A WILL ANNEXED; when there is a will but there is no
executor named or that the named executor refused, incompetent or refused to file a bond.
• ORDER OF PREFERENCE FOR THE APPOINTMENT OF A REGULAR ADMINISTRATOR;

(SECTION 6, RULE 78) (but may be disregarded by the court for valid cause) If no executor is named in
the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a
person dies intestate, administration shall be granted:
1. To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of
the court, or;
2. To such person as such surviving husband or wife, or next of kin, requests to have appointed, if
competent and willing to serve; or
3. If such surviving husband or wife, as the case may be, or next of kin, or the person selected by
them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty
(30) days after the death of the person to apply for administration or to request that
administration be granted to some other person, it may be granted to one or more of the principal
creditors, if may be granted to one or more of the principal creditors, if competent and willing to
serve;
4. If there is no such creditor competent and willing to serve, it may be granted to such other person
as the court may select. (Section 6, Rule 78)
5. DUTIES OF THE EXECUTOR OR THE ADMINISTRATOR
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• The executor or the administrator must return to the court three months after his appointment an
inventory and appraisal of all real and personal estate of the deceased which has come into his
possession or knowledge. In the appraisement of such estate, the court may order one or more of
the inheritance tax appraisers to give his or their assistance. (Section 1, Rule 83)
• Collation;
• Annual inventory; Every executor or administrator shall render an account of his administration
within one (1) year from the time of receiving letters testamentary or of administration, unless the
court otherwise directs because of extensions of time for presenting claims against, or paying the
debts of, the estate, or for disposing of the estate; and he shall render such further accounts as the
court may require until the estate is wholly settled. (Section 8, Rule 85)
6. RESIDUE; for the free portion not disposed of by the will, the court may leave it to the agreement of
the heirs for the project of partition. Otherwise, intestate succession shall apply in consonance with the
Civil Code.
7. CLAIMS AGAINST THE ESTATE (SEE THE DISCUSSION BELOW)
8. REVOCATION (SEE DISCUSSION BELOW)
9. REMEDIES
• Since the court is exercising a limited jurisdiction, what are those orders that are subject to appeal?
o Order admitting or allowing the will;

o Order appointing the administrator;
o Determination of Claims against the Estate;
o Approval of the partition with regards to the free portion.
o Can you appeal the order of appointment of a special administrator? NO because it is an

interlocutory order.
• MULTIPLE APPEALS; Hence NOTICE OF APPEAL and RECORD OF APPEAL
SPECIAL ADMINISTRATOR
• WHO; A special administrator is a representative of the decedent that is appointed by the probate court
to care for and preserve his estate until an executor or general administrator is appointed. (FESTIN, pg.
81) A special administrator is an officer of the court who is subject to its supervision and control,
expected to work for the best interest of the entire estate, with a view to its smooth administration and
speedy settlement. When appointed, he or she is not regarded as an agent or representative of the
parties suggesting the appointment. The principal object of the appointment of a temporary
administrator is to preserve the estate until it can pass to the hands of a person fully authorized to
administer it for the benefit of creditors and heirs, pursuant to Section 2 of Rule 80 of the Rules of Court.
(Ocampo v. Ocampo, G.R. No. 187879, [July 5, 2010], 637 PHIL 545-564)
• WHEN; (1) When there is delay in grating letters testamentary (when there is a will) or of
administration (when there is no will) by any cause including an appeal from the allowance or
disallowance of a will; (2) When the executor or administrator is a claimant against he estate he
represents. The SA administers only the portion over which there is such a claim.
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• SPECIAL ADMINISTRATOR VS REGULAR ADMINISTRATOR
SPECIAL ADMINISTRATOR REGULAR ADMINISTRATOR

Appointed when there is a delay in granting A person appointed when a decedent died
the letters testamentary or of administration intestate or did not appoint any executor in his
will or the will is subsequently disallowed
Not obliged to pay the debts of the estate Obliged to pay the debts of the estate
The order of appointment of special The order of appointment may the subject of
administrator is an interlocutory order and appeal.
may not be appealed. (FESTIN, pg. 82)
INTESTATE PROCEEDINGS
1. PETITION FOR THE APPOINTMENT OF AN ADMINISTRATOR (SECTION 2, RULE 79)
• Where it should be filed? See rules on jurisdiction and venue
• When is an administrator appointed? An administrator is the person appointed by the court to

administer the estate when: (1) The decedent died intestate; (2) The will was void and not allowed
to probate; (3) No executor was named in the will; (3) The executor named therein is incompetent;
or (4) The executor named therein refuses to serve as such.
• What is a letter of administration? the authority issued by the court to a competent person to
administer the estate of the deceased who died intestate.
• Who may file the petition? The petition must be filed by an interested person or a person who
would be benefited in the estate, such as an heir, or one who has claim against the estate such as a
creditor. (Section 2, Rule 79)
o A common law spouse is considered as an interested party because their “live-in relationship
is governed by the property regime of a union without marriage under Chapter 7, Article 147
or 148 of the Family Code as the case may be. (FESTIN, pg. 79)
o An "interested party," in estate proceedings, is one who would be benefited in the estate, such
as an heir, or one who has a claim against the estate, such as a creditor. Also, in estate
proceedings, the phrase "next of kin" refers to those whose relationship with the decedent is
such that they are entitled to share in the estate as distributees.
• What are the contents of the petition?
1. The jurisdictional facts; (1) Death of the testator; (2) Residence at the time of the death; (3) The
fact of being a resident of a foreign country and that the decedent has left an estate in the
province where the court is sitting if the decedent was a non-resident.
2. The names, ages, and residences of the heirs, and the names and residences of the creditors, of
the decedent;
3. The probable value and character of the property of the estate;
4. The name of the person for whom letters of administration are prayed. (Section 2, Rule 79)
• What are the formal requirements of the petition? (1) The jurisdiction facts must be stated; (2) The
petition must be verified; (3) Payment of Docket fees; (4) Certification against non-forum shopping.
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2. PROCEDURE OF THE APPOINTMENT
1. A petition for letters of administration shall be filed.

2. The judge shall determine whether the petition is sufficient in form and in substance. It shall check
whether the jurisdiction facts required by the Rules are alleged. Death certificate of the person may
be appended.
3. The court having jurisdiction, such court shall fix a time and place for hearing the petition.
4. The court then shall cause notice (either personally or through registered mail) to be given to the:
a. Known heirs;
b. Known creditors; and
c. Other persons believed to have interest in the estate if the names and addresses are known.
5. The notice must be published in a newspaper of general circulation in the province where the court
has jurisdiction once a week for three consecutive weeks.
6. Any interested person may contest (written opposition) the petition and may pray that letters issue
to himself, or to any competent person or person named in the opposition. (Section 4, Rule 79)
7. At the hearing of the petition, it must first be shown that notice has been given as required, and
thereafter the court shall hear the proofs of the parties in support of their respective allegations,
and if satisfied that the decedent left no will, or that there is no competent and willing executor, it
shall order the issuance of letters of administration to the party best entitled thereto. (Section 5, Rule
79)
8. Letters of administration may be granted to any qualified applicant, though it appears that there
are other competent persons having better right to the administration, if such persons fail to appear
when notified and claim the issuance of letters to themselves. (Section 6, Rule 79)
3. OPPOSITION;
• TWO GROUNDS TO CONTEST THE PETITION FOR LETTERS OF ADMINISTRATION:

1. Incompetency of the person for whom letters are prayed therein, or
2. On the ground of the contestant's own right to the administration.
CLAIMS AGAINST THE ESTATE

(BOTH TESTATE AND INTESTATE)
1. NOTICE REQUIREMENT; Immediately after granting the letters testamentary or of administration,
the court shall issue a NOTICE requiring all persons having money claims against the decedent to file
them in the office of the clerk of said court. (Section 1, Rule 86)
• All claims for money against the decent must be filed within the time limited in the notice which
must not less than 6 months or more than 12 months (STATUE OF NON-CLAIMS); otherwise they
are BARRED FOREVER.
• Exceptions: (1) The court may allow the the creditor for a new period not exceeding one month
from the order allowing the same for just cause in accordance with Section 2, Rule 86 provided that
there is a CAUSE SHOWN; and (2) When the administrator or the executor (either within the
period for filing of claims or thereafter) sues the claimant, the latter may avail of the claim through
a counterclaim. If he is able to prove the same, he may recover the claim against the estate. (Section
5, Rule 86)
• What could be a valid cause that may delay the filing of the claim against the estate? A valid
cause that may delay the filing of the claim is the pendency of a case with regards to a claim.
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2. MONEY CLAIMS - The claim must be for money which are not secured by a lien against property of
the estate.
• The liability must have been contracted by the decedent BEFORE DEATH. After death liabilities
are not covered except funeral expenses and expenses of his last illness.
o AFTER DEATH - Claims may be allowed as EXPENSES OF ADMINISTRATION and may be

collected from the administrator or executor personally or by motion in the testate or intestate
proceeding without formality and limitations for money claims against the decedent.
o CLAIMS WHICH DO NOT SURVIVE DEATH – claims against the estate
o CLAIMS WHICH SURVIVE DEATH – obligations arising from contract, law, quasi-contract,
and quasi-delict; a separate civil action may be enforced either against the estate of the accused
(contract) or the executor or the administrator (law, quasi-contact and quasi-delict). Hence, a
money claim arising from crime or quasi-delict must be subject to an action against the
executor, administrator or the heirs.
o Claims created by law are not within the coverage (unpaid taxes). For unpaid taxes (before or
after), such can be collected against the heirs even after the distribution of the proportionate
share in the inheritance and shall be collected based on their respective share.
o For the recovery of real or personal property from the estate or for the enforcement of a lien,
an action should be instituted against the executor or the administrator. (Rule 87).
• Where the obligation of the decedent is SOLIDARY with another debtor, the claim shall be filed
against the decedent as if he were the only debtor (the whole amount), without prejudice to the
right of the estate to recover contribution from the debtor. (Section 6, Rule 86) BUT it does not mean
that the creditor cannot pursue against the surviving solidary debtors. Section 6 only provides for
the method if the creditor wanted to pursue the obligation against the decedent. This choice of the
creditor is enshrined in Article 1216 of the Civil Code and it is not mandatory for him to go against
the dead solidary debtor.
• In a JOINT obligation of the decedent, the claim shall be confined to the portion belonging to him.
• WHAT ARE THOSE MONEY CLAIMS?
1. ARISING FROM CONTRACT - All claims for money against the decent, arising from contract
(whether express or implied [quasi-contract]), whether the same be due, not due, or contingent
(one which depends for its demandability upon the happening of a future uncertain event;
suspensive condition). (Section 5, Rule 86)
• The filing of an ordinary action to recover said claim is not proper and may be pursued
only by filing the same in the administration proceedings that may be taken to settle the
estate of the deceased.
• CONTINGENT CLAIMS – the liability depends on some future event that may or may not
happen, and, which makes it uncertain whether there will ever be any liability (as
distinguished to an absolute claim). When the contingency arises, it converts the
contingent claim to a valid claim and the court should be informed that the claim had
already matured.
• IMPLIED CONTRACTS – it includes ex lege or quasi-contract, such as for the return of

goods from the person to whom the goods were mistakenly delivered, who thus becomes
a debtor in favor of the true owner who is a creditor, under an implied contract.
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2. FUNERAL EXPENSES AND EXPENSES FOR LAST SICKNESS - all claims for funeral
expenses and expense for the last sickness of the decedent, and;
3. JUDGMENT FOR MONEY AGAINST THE DECENT

• It must be presented as a claim against the estate where the judgment debtor dies before
levy or execution of the properties.
• When the action is for recovery of money arising from contract and the defendant dies
before the 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.
4. A money claim under Section 20 of Rule 3 cannot be enforced by a writ of execution but should
be instead be filed as a money claim.
• When there is a money judgment against the defendant-decedent, the procedure is not to file a
motion for execution but for a claim against the estate.
3. PROCEDURE
1. Immediately after granting letters testamentary or of administration, the court shall issue a notice
requiring all persons having money claims against the decedent to file them in the office of the
clerk of said court. (Section 1, Rule 86)
• The notice shall state the time for the filing of claims against the estate, which shall not be more
than twelve (12) not less than six (6) months after the date of the first publication of the notice.
• PURPOSE: to settle the estate with dispatch so that the residue may be delivered to the persons
entitled without their being afterwards called upon to respond in actions for claims, which,
under the ordinary statute of limitations, have not yet prescribed.
• This period supersedes the ordinary statue of limitations. The period of filing starts to run from
the date of the first publication of the notice and runs even against the state.
• Notice to the creditor shall not be proper if only a special administrator has been appointed.
• ONE MONTH EXTENSION; A creditor who has failed to file his claim within the period may
be allowed, through a motion for leave to file a claim for a cause shown and on such terms as
are equitable, to file the claim within a time not exceeding one (1) month. This must be done
before the order of distribution is entered. The one-month period shall commence from the
order of the court allowing the filing of the claim and not from the expiration of the original
period. The court has no authority to admit a belated claim for no cause or for an insufficient
cause. The determination of the sufficiency of the cause shall be left to the discretion of the
court and the appellate court cannot reverse or set aside the action of the court below unless
the latter has abused its discretion.
2. Immediately after the notice to creditors is issued, every executor or administrator shall cause the
notice to be published three (3) weeks successively in a newspaper of general circulation in the
province, and to be posted for the same period in four public places in the province and in two
public places in the municipality where the decedent last resided. (Section 3, Rule 86)
• The publication of the notice to the creditors is constructive notice to all and a creditor shall
not be permitted to file a claim beyond the period on the ground that he had no knowledge of
the administrative proceedings.
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3. Within ten (10) days after the notice has been published and posted, the executor or administrator
shall file or cause to be filed in the court a printed copy of the notice accompanied with an affidavit
setting forth the dates of the first and last publication thereof and the name of the newspaper in
which the same is printed. (Section 4, Rule 86)
• The rationale for this requirement is to inform the creditors and the court that the notice
requirement has been duly followed.
4. The claim (enumerated above) must be filed within the period fixed. A person having a claim
against the estate must comply with the following procedure:
• The claim must be delivered with the necessary vouchers (affidavit to be submitted by the
claimant) to the clerk of court;
• A copy must be served on the executor or administrator;
• If the claim is founded on an instrument, it must be attached to the claim and filed therewith.
The original need not be filed, but a copy thereof with all indorsements shall be attached to the
claim and filed therewith. On demand, however, of the executor or administrator, or by order
of the court or judge, the original shall be exhibited, unless it be list or destroyed, in which case
the claimant must accompany his claim with affidavit or affidavits containing a copy or
particular description of the instrument and stating its loss or destruction.
• If the claim is due, an affidavit supporting the claim must be filed which shall state:
o The amount justly due;
o That no payments have been made thereon which are not credited; and
o That there are no offsets to the same.
• If the claim is not yet due or is contingent, it must be supported by affidavits stating its
particulars; and
• When a person other than the claimant makes the affidavit, the reasons why it is not made by
the claimant must be stated.
• In view of the provisions of Sec. 9 of this Rule, it would appear that if there is no instrument
evidencing the debt of the decedent, and no writing is offered as proof thereof, the claim cannot
be proved. This appears to be sustained by Sec. 23, Rule 130, also known as the Dead Man
Statute.
5. Within fifteen (15) days (the court in its discretion may extend the time for filing such answer) after
service of a copy of the claim on the executor or administrator, the latter shall file his ANSWER
admitting or denying the claim specifically, and setting forth the admission or denial. A copy of
the answer shall be served by the executor or administrator on the claimant.
• If he has no knowledge sufficient to enable him to admit or deny specifically, he shall state
such want of knowledge (tantamount to denial).
• The executor or administrator in his answer shall allege in offset any claim which the decedent
before death had against the claimant, and his failure to do so shall bar the claim forever.
• Any claim admitted entirely by the executor or administrator shall immediately be submitted
by the clerk to the court who may approve the same without hearing; but the court, in its
discretion, before approving the claim, may order that known heirs, legatees, or devisees be
notified and heard. If upon hearing, an heir, legatees, or devisee opposes the claim, the court
may, in its discretion, allow him fifteen (15) days to file an answer to the claim in the manner
prescribed in the preceding section. (Section 11, Rule 86)
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• When the executor or administrator, in his answer, admits and offers to pay part of a claim,
and the claimant refuses to accept the amount offered in satisfaction of his claim, if he fails to
obtain a more favorable judgment, he cannot recover costs, but must pay to the executor or
administrator costs from the time of the offer. Where an action commenced against the
deceased for money has been discontinued and the claim embraced therein presented as in this
rule provided, the prevailing party shall be allowed the costs of his action up to the time of its
discontinuance. (Section 14, Rule 86)
6. Upon the filing of an answer to a claim, or upon the expiration of the time for such filing, the clerk
of court shall set the claim for trial with notice to both parties. The court may refer the claim to a
commissioner. (Section 12, Rule 86)
7. The judgment of the court approving or disapproving a claim, shall be filed with the record of the
administration proceedings with notice to both parties, and is appealable as in ordinary cases. A
judgment against the executor or administrator shall be that he pay, in due course of
administration, the amount ascertained to be due, and it shall not create any lien upon the property
of the estate, or give to the judgment creditor any priority of payment. (Section 13, Rule 86)
• While Sec. 13 of Rule 86 provides that a judgment of the probate court approving or
disapproving a claim shall be "appealable as in ordinary cases," B.E Big. 129, although
dispensing with a record on appeal in appeals from judgments in ordinary actions, still retains
that requirement in appeals in special proceedings and provides for a 30-day reglementary
period (Sees. 2[a] and 3, Rule 41).
POWER TO SELL, MORTGAGE OR ENCUMBER
• Can the Executor or Administrator sell, mortgage or encumber? Yes, subject to the approval of the
court because it is considered as an act of dominion.
• ORDER FOR THE SALE, MORTGAGE OR ENCUMBER OF REALTY; The court may authorize the
executor or administrator to sell, mortgage, or otherwise encumber so much as may be necessary of the
real estate (in lieu of personal estate) for the purpose of paying debts, expenses, and legacies.
• REQUISITES:
1. The E or A must have made an application;

2. There must be written notice to the heirs, devisees, and legatees residing in the Philippines;
3. The personal estate of the deceased is not sufficient to pay the debts, expenses of administration,
and legacies, or where the sale of such personal estate may injure the business or other interests of
those interested in the estate, and where a testator has not otherwise made sufficient provision for
the payment of such debts, expenses, and legacies;
4. It clearly appears that such sale, mortgage, or encumbrance would be beneficial to the persons
interested; and
• The E or A is not constrained to SME the whole property or none. Only so much s may be
necessary of the real estate to be SME.
• The whole estate may be SME, in the following instances:

o If the SME of a part will injure those interested in the remainder; and
o If it is necessary under the circumstances. (Section 2, Rule 89)
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INVENTORY AND APPRAISAL (RULE 83)
• DUTY OF THE EXECUTOR AND THE ADMINISTRATOR TO REPORT; The executor or the
administrator must return to the court three months after his appointment an inventory and appraisal
of all real and personal estate of the deceased which has come into his possession or knowledge. In the
appraisement of such estate, the court may order one or more of the inheritance tax appraisers to give
his or their assistance. (Section 1, Rule 83)
o This is distinguished from the duty of the administrator to render an account of his administration
within ne year from the receipt of the letters testamentary or of administration under Section 8 of
Rule 85.
o PURPOSE; The objective of the Rules of Court in requiring the inventory and appraisal of the estate
of the decedent is "to aid the court in revising the accounts and determining the liabilities of the
executor or the administrator, and in malting a final and equitable distribution (partition) of the
estate and otherwise to facilitate the administration of the estate. (Aranas v. Mercado, G.R. No.
156407, [January 15, 2014], 724 PHIL 174-197)
o PERIOD: Three months after the appointment. However, this period is not mandatory and the
submission of an inventory beyond the period would not deprive the probate court of jurisdiction
to approve it. The mere delay in filing the inventory if not satisfactorily explained may be a ground
for removal.
• SUBJECT MATTER OF THE INVENTORY AND THE APPRAISAL
o GENERAL RULE; All real and personal estate of the deceased which has come into his possession
or knowledge. Although the administrator is not chargeable with the administration of the estate
which has not come to his possession, he is, however, accountable for a true and complete
inventory of all the property belonging to the estate which has come to his knowledge. No
properties appearing to belong to the decedent can be excluded from the inventory. The mere fact
that the properties were already covered by Torrens Titles in the name of a third person cannot be
a valid basis for immediately excluding certain properties from the inventory. (Aranas v. Mercado,
G.R. No. 156407, [January 15, 2014], 724 PHIL 174-197)
o EXCEPTIONS: (1) The wearing apparel of the surviving husband or wife and minor children; (2)
The marriage bed and bedding, and; (3) Such provisions and other articles as will necessarily be
consumed in the subsistence of the family of the deceased, under the direction of the court, shall
not be considered as assets, nor administered as such, and shall not be included in the inventory.
GENERAL POWERS AND DUTIES OF EXECUTOR OR

ADMINISTRATOR (RULE 84)
• GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS (RULE 84); The
court appoints an executor or administrator for the latter to manage the estate. Hence, he may perform
only ACTS OF ADMINISTRATION without special authority and leave of court. He cannot perform
ACTS OF OWNERSHIP.
o Examples of acts of administration are Sections 2 and 3; prosecuting claims, defending claims.
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o Action for the ejectment of the decedent’s tenants is considered as an act of administration.
o Extention of lease is, as a general rule, considered as an act of strict dominion UNLESS the renewal
of the lease contract is indicated in the contract.
o He may lease the properties even without judicial authority or approval. According to Regalado,
once the lease contract exceeds one year, the same is no longer considered as mere act of
administration and leave of court is already required. But the case of San Diego vs Nombre (cited by
DE LEON) clarified that even though the lease contract exceeds one year, court intervention is still
not required because while an agent and administrator may have identical duties, the
administrator cannot be considered as the court’s agent The administrator represents the courts
and well as the heirs and creditors of the estate, but an agent is only answerable to one’s principal.
It further clarified that court intervention is only necessary when the lease shall be registered in the
Registry of Property under Article 1647 of the Civil Code.
o He cannot exercise the right of legal redemption.
o Where the estate is already the subject of testate or intestate proceeding, there must be prior
approval of the court for any transaction involving it.
• POWERS OF AN EXECUTOR OR ADMINISTRATOR

1. Possess and manage the estate of the deceased to pay for the debts and expenses of administration;
and
2. Access to, examine and take copies On request, shall exhibit to him all such books, papers, and
property in their hands or control; of, books and papers relating to the partnership business, and
examine and make invoices of the property belonging to such partnership.
• DUTIES OF AN EXECUTOR OR ADMINISTRATOR

1. Maintain the estate in tenable repair; and
2. Delivery the same to the heirs or devisees when directed by the court.
• ACCESS TO PARTNERSHIP BOOKS (WHEN DECEDENT IS A PARTNER); Section 1 pertains to

the special powers granted to the executor or administrator when the estate involved belongs to a
partner and that the decedent, at the time of his lifetime, was a member of a partnership.
o Safeguards to protect the interests of a decedent partner in a partnership; The executor or

administrator of the estate of a deceased partner shall at all times have; On request, shall exhibit
to him all such books, papers, and property in their hands or control; Make examine and make
invoices of the property belonging to such partnership. (Section 1, Rule 84)
o Obligations of the surviving partner/s; (1) Access to, and may examine and take copies of, books
and papers relating to the partnership business, and (2) On the written application of such executor
or administrator, the court having jurisdiction of the estate may order any such surviving partner
or partners to freely permit the exercise of the rights, and to exhibit the books, papers, and property,
as provided in Section 1. (Section 1, Rule 84).
o The court may punish any partner failing to do so for contempt. (Section 1, Rule 84)
• KEEP BUILDINGS IN REPAIR; An executor or administrator shall maintain in tenable repair the
houses and other structures and fences belonging to the estate, and deliver the same in such repair to
the heirs or devisees when directed so to do by the court. (Section 2, Rule 84)
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• PAYMENT OF DEBTS AND ADMINISTRATION OF ESTATE NOT WILLED; An executor or

administrator shall have the right to the possession and management of the real as well as the personal
estate of the deceased SO LONG (it is not absolute) as it is necessary for the payment of the debts and
the expenses of administration. (Section 3, Rule 84)
REVOCATION, DEATH, RESIGNATION AND REMOVAL OF

EXECUTORS OR ADMINISTRATORS (RULE 82)
• REVOCATION – Section 1 contemplates a situation wherein the grounds exist prior to the issuance
of the letters of administration and that such should not have been issued in the first place.
1. When the decedent’s will be discovered and admitted to probate; and
• The mere discovery of a document purporting to the last will and testament of the decedent
after the appointment of an administrator does not ipso facto nullify the letters of
administration already issued. This may only be done when the newly-discovered will has
been admitted to probate that the letters of administration may be revoked. (FESTIN, pg. 90)
• Where the deceased left a will, the proceeding is testate and where there is no will, the
proceeding is intestate. The probate of the will is mandatory and therefore, takes precedence
over intestate proceedings. Thus, if in the course of the intestate proceedings, it is found out
that the decedent had left a last will, proceedings for the probate of the latter should replace
the intestate proceedings even if at that stage, an administrator had already been appointed,
the latter being required to render a final account and turn over the estate in his possession to
the executor subsequently appointed. This, however, is understood to be without prejudice
that the proceeding shall continue as an intestacy.
2. When letters of administration are illegally issued or issued without jurisdiction.
• REMOVAL – Section 2 presupposes that the letters of administration were lawfully issued, but for
reasons that occur after the letters are issued, there is sufficient basis to remove the persons appointed
as administrator.
Grounds for removal or acceptance of resignation of executor or administrator
1. Neglects to render account and settle the estate according to law;

2. Neglect to perform an order or judgment of the court;
3. Neglect to perform a duty expressly provided by the rules;
4. Absconds; or
5. Becomes insane, or otherwise incapable or unsuitable to discharge the trust. (Section 2, Rule 82)
• The grounds enumerated are not exclusive because the court has ample discretion to remove as
long as there is evidence of an act or omission on the part of the administrator not conformable to
or in disregard of the rules or the orders of the court which it deems sufficient or substantial to
warrant the removal of the administrator. (FESTIN, pg. 91)
OTHER GROUNDS: (1) Disbursement of funds without judicial approval;

(2) False representation in securing appointment;
(3) Holding of an interest adverse to the estate;
(4) Any conduct showing unfitness to discharge the trust;
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(5) Physical inability and consequent unsuitability to manage the

estate (FESTIN)
• Temporary absence in the state does not disqualify one to be an administrator of the estate.
Thus, as held In re McKnighfs Will, a temporary residence outside of the state, maintained for
the benefit of the health of the executor's family, is not such a removal from the state as to
necessitate his removal as executor. Temporary absence from the state on account of ill health,
or on account of business, or for purposes of travel or pleasure, would not necessarily establish
the fact that an executor has removed from the state, within the intent of the statute.
• A creditor, even a contingent one, would have the personality to seek the relief of removing an
administrator.
• The grounds enumerated are not the grounds for the removal of a special administrator. The latter
may be removed on other grounds based upon the court’s discretion.
While the court is invested with ample discretion in the removal of an administrator, it must,
however, have some fact legally before it in order to justify such removal. There must be evidence
of an act or omission on the part of the administrator not conformable to or in disregard of the rules
or the orders of the court which it deems sufficient or substantial to warrant the removal of the
administrator. There being no factual and substantial bases therefor, is not adequate ratiocination
for the removal of private respondent. Suffice it to state that the removal of an administrator does
not lie on the whims, caprices and dictates of the heirs or beneficiaries of the estate.
• RESIGNATION
1. The administrator must submit a resignation letter to the court; and

2. The administrator prepares an inventory of the properties in his possession.
• EFFECTS OF REMOVAL, DEATH OR RESIGNATION
1. The remaining executor or administrator may administer the the trust alone, unless the court grants
letters to someone to act with him. If there is no remaining executor or administrator,
administration may be to any suitable person. (Section 2, Rule 82)
2. The person to whom letters testamentary or of administration are granted after the revocation of
former letters, or the death, resignation, or removal of a former executor or administrator, shall
have the like powers to collect and settle the estate not administered that the former executor or
administrator had, and may prosecute or defend actions commenced by or against the former
executor or administrator, and have execution on judgments recovered in the name of such former
executor or administrator. An authority granted by the court to the former executor or
administrator for the sale or mortgage of real estate may be renewed in favor of such person
without further notice or hearing. (Section 4, Rule 82)
• The new administrator or executor cannot sell or mortgage the decedent’s real estate pursuant
to an authority granted to the former administrator or executor. The new one must secure a
renewal of such authority from the court.
3. The lawful acts of an executor or administrator before the revocation of his letters testamentary or
of administration, or before his resignation or removal, shall have the like validity as if there had
been no such revocation, resignation, or removal. (Section 3, Rule 82)
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FINAL MATTERS
1. What could be the condition precedent) before the distribution of the estate? Payment of the taxes
and debts.
2. What will happen after? Distribution of the estate of the decedent. If there is a will, then it shall be
distributed according to the provisions of the will. If there is a residue, intestacy shall apply or it shall
be based on the project of partition of the parties. If there is no will (or intestate), the distribution shall
be according to the provisions of the Civil Code regarding intestacy or the project of partition by the
parties.
3. When should collation happen? When there are advancements made by the decedent. What if there
is concealment of advances made by the testator? The court may compel the disclosure of such
advancements.
ESCHEAT
• Escheat proceedings refer to the judicial process in which the state, by virtue of its sovereignty, steps
in and claims abandoned, left vacant, or unclaimed property, without there being an interested person
having a legal claim thereto.
• It is an action in rem because it binds the whole world. The requirement of publication is a jurisdictional
requirement.
• What is the “particular fact, right or status” declared in this proceeding? It is actually a combination
of all. The fact of death and that no heirs are available must be established. Also, the right of the estate
to recover is also established in this proceeding.
• May a court may declare an absentee to be presumptively dead in connection with an action for
settlement of the intestate estate of the absentee? Yes. Indeed, while a petition instituted for the sole
purpose of securing a judicial declaration that a person is presumptively dead cannot be entertained if
that were the only question or matter involved in the case, the courts are not barred from declaring an
absentee presumptively dead as an incident of, or in connection with, an action or proceeding for the
settlement of the intestate estate of such absentee.
• Can an escheat proceedings be converted into settlement of estate? No. the proceedings were
instituted as escheat proceedings and not for the settlement of the estate of deceased persons. The court
acquired jurisdiction to hear the petition for escheat by virtue of the publication of the petition for
escheat. The jurisdiction acquired can not be converted into one for the distribution of the properties
of the said decedents. For such proceedings (for the distribution of the estate of the decedents) to be
instituted, the proper parties must be presented and the proceedings should comply with the
requirements of the Rules. (Municipalities of Magallon, Isabela and La Castellana v. Bezore, G.R. No. L-14157,
[October 26, 1960], 109 PHIL 829-832)
o Hence, the escheat proceeding must be terminated and that the appointment of an administrator
cannot be asked on the escheat proceeding simply because a settlement of estate proceeding has
different jurisdictional requirements.
• What are the three kinds of escheat? (1) Section 1 of Rule 91 when a person dies intestate, with real
properties within the Philippines; (2) Section 5 of Rule 91 when there is a reversion of property
24
alienated in violation of the Constitution or the statute; and (3) Under Act. No. 3936 when there are
unclaimed balances in banks (dormant accounts for 10 years).
• Requisites; (1) The person died intestate; (Even if the decedent died with a will (testate), an escheat proceeding
shall be proper if his will was not allowed to be probated as if he died intestate. In such a case, if the other requisites
are present, then the same can still be escheated. (FESTIN, pg. 138); (2) That he left no heirs or persons
entitled by the law to the same; and (3) That the deceased left properties in the Philippines.
• WHERE it is filed – RTC of the province where the deceased last resided or in which he had an estate
(if non-resident). (Section 1, Rule 91)
• WHO shall initiate – the Solicitor General or his representatives in behalf of the Republic of the
Philippines.
• Procedure
1. A petition for escheat proceedings shall be filed before the RTC of the province where the
deceased last resided or in which he had an estate (if non-resident).
• PRAYER: that the estate of the deceased be declared escheated. (Section 1, Rule 91)
• Formal requirements: there must be certificate of non-forum shopping and payment of docket
fees BUT it is not required that it must be verified.
2. If the petition is sufficient in form and substance, the court shall issue an order. In that order, it
shall fix a date and place for the hearing. The date shall be not more than six (6) months after the
entry of the order. The order shall direct that a copy of the order be published before the hearing
at least once a week for six (6) successive weeks in some newspaper of general circulation published
in the province, as the court shall be deem best. (Section 2, Rule 91) The publication requirement is
a jurisdictional requisite. Non-compliance with which affects the validity of the proceedings.
3. The court then shall conduct a hearing. During the hearing, the following must be established: (1)
Proof of publication of the order; and (2) The petitioner must establish the following: (a) The person
died intestate; (b) Seized of real or personal property in the Philippines; and (c) Leaving no heir or
person entitled to the same.
4. Upon satisfactory proof in open court on the date fixed in the order of those mentioned in No. 3,
the court shall render judgment. The judgment shall adjudge that the estate of the estate of the
deceased in the Philippines, after the payment of just debts and charges, shall escheat.
5. After payment of the debts and charges, the court shall issue a court order wherein the estate shall
be distributed. The properties shall be distributed as follows:
• RESIDENT DECEDENT OF THE PHILIPPINES; Personal property – Municipality or city

where he last resided in the Philippines; Real property – Municipalities or cities in which the
property is situated.
• NON-RESIDENT DECEDENT; Respective municipalities or cities where the properties are

located
• The court, at the instance of an interested party, or on its own motion, may order the
establishment of a permanent trust, so that the only income from the property shall be used.
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6. If a devisee, legatee, heir, widow, widower, or other person entitled to such estate appears and files
a claim thereto with the court within five (5) years from the date of such judgment, such person
shall have possession of and title to the same, or if sold, the municipality or city shall be accountable
to him for the proceeds after deducting reasonable charges for the care of the estate; but a claim
not made within the said time shall be forever barred. (Section 4, Rule 91)
• In this jurisdiction, a claimant to an escheated property must file his claim "within five (5) years
from the date of such judgment, such person shall have possession of and title to the same, or
if sold, the municipality or city shall be accountable to him for the proceeds, after deducting
the estate; but a claim not made shall be barred forever." The 5-year period is not a device
capriciously conjured by the state to defraud any claimant; on the contrary, it is decidedly
prescribed to encourage would-be claimants to be punctilious in asserting their claims,
otherwise they may lose them forever in a final judgment. Hence, with the lapse of the five-
year period, private respondent has lost her right to claim and the supposed “discovery of the
deeds of donation” is not enough justification to nullify the escheat judgment which has long
attained finality. (Republic v. Court of Appeals, G.R. No. 143483, [January 31, 2002], 426 PHIL 177-
186)
• ESCHEAT OF UNCLAIMED BALANCES UNDER ACT. NO. 3936; it is a proceeding wherein the
state compels the surrender to it of unclaimed deposit balances when there is substantial ground for a
belief that they have been abandoned, forgotten or without an owner.
o What are dormant accounts? Accounts that have no movement for TEN YEARS.
o May it be included in an escheat proceeding? Yes. It shall be included in the same petition.
o What is the difference? As to the death requirement, it is not required that the dormant depositor
be dead.
o In this proceeding, the OSG shall initiate because they have the information of the presence of
dormant accounts (the branch manager of banks shall report to the Bureau of Treasury of the
existence of these dormant accounts (as mandated by law). The BOT then will report it to the OSG).
o The notification requirement is meant to inform the depositors that their deposit could be escheated
if left unclaimed. Accordingly, before filing a sworn statement, banks and other similar institutions
are under obligation to communicate with owners of dormant accounts. The purpose of this initial
notice is for a bank to determine whether an inactive account has indeed been unclaimed,
abandoned, forgotten, or left without an owner. If the depositor simply does not wish to touch the
funds in the meantime, but still asserts ownership and dominion over the dormant account, then
the bank is no longer obligated to include the account in its sworn statement. It is not the intent of
the law to force depositors into unnecessary litigation and defense of their rights, as the state is
only interested in escheating balances that have been abandoned and left without an owner.
• REVERSION; Until otherwise provided by law, actions reversion or escheat of properties alienated in
violation of the Constitution or of any statute shall be governed by this rule, except that the action shall
be instituted in the province where the land lies in whole or in part. (Section 5, Rule 91)
o X, a Filipino, sold two hectares of land to Y (Japanese). After six months, Y sold it to Z (Filipino).
Can the subject property be subject to reversion?
o X, a Japanese national, bought a condominium unit and was issued an OCT. Can the
condominium unit be subject to a reversion proceeding? No. According to Section 5 of R.A. 4726
or the “Condominium Act”, “where the common areas in the condominium project are held by the
26
owners of separate units as co-owners hereof, no condominium unit therein shall be conveyed or
transferred to persons other than Filipino citizens or corporation at least 60% of the capital stock of
which belong to Filipino citizens, except in cases of hereditary succession. Where the common areas
in a condominium project are held by a corporation, no transfer or conveyance of a unit shall be
valid if the concomitant transfer of the appurtenant membership or stockholding in the corporation
will cause the alien interest in such corporation to exceed the limits imposed by existing laws.” To
simplify, it means that foreigners can buy a condo unit as long as the project or the corporation
who built and own the project is acquired by 60% or more by Filipinos. Thus, X validly bought the
condominium unit and can actually have the title in his name provided that said condominium
building or project is owned by not more than 40% by foreigners.
o In case of pari delicto in revision proceedings, the CONSTITUTION SHALL PREVAIL.
GUARDIANSHIP
• Guardianship - a trust relation of the most sacred character, in which one person, called a "guardian"
acts for another called the "ward" whom the law regards as incapable of managing his own affairs.
• X (a 26-year old drug addict currently in rehabilitation), who has no occupation but with property,
is living currently with Y (his live in partner). Y filed for a petition for appointment of guardianship.
Is this proper for Y to file the said petition? Y may file the petition provided that the petition must
allege that there are properties of X. However, in the absence of such allegation, then there is no
necessity for appointment of guardianship for X.
• Governing law; (1) Rules of Court (Rules 92-97) – General Guardians and Guardianship under the
Rules of Court is limited to the guardianship of INCOMPETENTS WHO ARE NOT MINORS; (2) Rule
on Guardianship of Minors (A.M. No. 03-02-05) – the administrative circular governs the guardianship
of minors under Section 27 of the said circular.
• Who are considered as incompetents under the Rules of Court?

1. Persons suffering under the penalty of civil interdiction ;
2. Hospitalized lepers ;
3. Prodigals;
4. Deaf and dumb who are unable to read and write;
5. Those of unsound mind, even though they have lucid intervals;
6. Persons not being of unsound mind, but by reason of their age, diseases, weak mind, and other
similar causes, cannot, without outside aid, take care of themselves and manage their property. (Section
2, Rule 92)
• Guardian – a person in whom the law has entrusted the care and custody of the person or of the estate
or both of an infant, insane, or other person incapable of managing his own affairs.
• Kinds:
o According to scope of extent: (1) Guardian of the person; (2) Guardian of the property; and (3)
General guardian
o According to constitution; (1) Legal guardian - a person who, without the need of judicial
appointment, is designated as such by the provision of the law. (Art. 225 of the FC); (2) Guardian
ad litem - competent person that is appointed by the court for purposes of a particular action or
27
proceeding involving a minor; and (3) Judicial guardian - a person appointed by the court for the
person, property or both of the ward to represent the latter in all acts and litigations.
• If the court sees to it that the petition is sufficient in form and in substance, it shall fix a time and place
for HEARING and shall cause REASONABLE NOTICE thereof to be given to the persons mentioned
in the petition residing in the province, including the incompetent himself, and may direct other
general or special notice thereof to be given. (Section 3, Rule 93)
o If the ward is a NON-RESIDENT, the notice shall be in the manner which the court deems it
proper, by publication or otherwise. (Section 6, Rule 93)
o Publication is not required (except when the incompetent is a non-resident). The notice is a
JURISDICTIONAL REQUIREMENT and without such, the court acquires no jurisdiction to
appoint a guardian. Hence, a notice of the hearing of the petition served on the persons mentioned
in the petition residing in the Philippines and the incompetent himself is sufficient for the court to
acquire jurisdiction.
o It is significant to note that the rules do not necessitate that creditors of the minor or incompetent
be likewise identified and notified.
• APPEAL – Ordinary appeal via filing of the Notice of Appeal (15 days)
• Motion for reconsideration is a remedy.
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29
TRUSTEE
• Kinds of trust - Express trusts are those which are created by the direct and positive acts of the parties,
by some writing or deed, or will, or by words evincing an intention to create a trust. Implied trusts are
those which, without being express, are deducible from the nature of the transaction as matters of
intent, or which are super induced on the transaction by operation of law as matters of equity,
independently of the particular intention of the parties.
o Rule 98 applies only to EXPRESS TRUST, one which is created by (1) WILL or (2) WRITTEN
INSTRUMENT, and not to an implied trust
• Who may file a petition? Petition may be filed by the executor or administrator or the person
appointed as trustee in the instrument.
• Purpose of the proceedings? A trust is a confidence reposed in one person (called the trustee), for the
benefit of another called the cestui que trust, with respect to the property held by the former for the
benefit of the latter. Management or administration of the estate.
• It is an in rem proceeding that is why PUBLICATION is a requirement.
• Notice requirement
• Bond requirement; The bond shall be in the amount fixed by the judge of said court. The bond shall
be payable to the Government of the Philippines; and it must be sufficient and available for the
protection of any party in interest.
o A trustee who neglects to file such bond shall be considered to have declined or resigned the trust;
o The court may until further order EXEMPT a trustee under a will from giving a bond;
§ When the testator has directed or requested such exemption and;
§ May so exempt any trustee when all persons beneficially interested in the trust, being of full
age, request the exemption.
§ Such exemption may be cancelled by the court at any time and the trustee required to forthwith
file a bond. (Section 5, Rule 98)
• A trustee may sell or mortgage properties but it is required that there must be court approval (because
it is an ACT OF STRICT DOMINION).
• For the extension of a lease, it shall be considered as an ACT OF STRICT DOMINION if the contract is
silent. If the contract expressly stipulates the extension of the lease, then it is considered as an ACT OF
ADMINISTRATION (which do not require court approval).
ADOPTION
• Adoption – the process of making a child, whether related or not to the adopter, possess in general, the
rights accorded to a legitimate child. It is a juridical act, a proceeding in rem which creates between
two persons a relationship similar to that which results from legitimate paternity and filiation.
30
• Adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of
paramount consideration. They are designed to provide homes, parental care and education for
unfortunate, needy or orphaned children and give them the protection of society and family in the
person of the adopter, as well as childless couples or persons to experience the joy of parenthood and
give them legally a child in the person of the adopted for the manifestation of their natural parent
instincts. (Republic v. Miller, G.R. No. 125932, [April 21, 1999], 365 PHIL 634-639)
• GOVERNING LAWS AND RULES:
o RULES 99 AND 100 HAVE ALREADY BEEN REPEALED BY A.M. NO. 02-6-02-SC (THE RULE
ON ADOPTION) WHICH COVERS BOTH THE PROCEDURE GOVERNING DOMESTIC AND
INTER-COUNTRY ADOPTION.
o Sections 6 and 7 of Rule 99 shall still be applicable.
o DOMESTIC ADOPTION ACT OF 1998 (DAA) (R.A. 8552)

§ R.A. 8552 intended to govern the domestic adoption of Filipino children, whether the adopter
is citizen of the Philippines or Alien. The adoption is domestic when the entire process (filing
of the petition for adoption up to the issuance of the decree of adoption) takes place in the
Philippines.
§ If the adopter is a CITIZEN of the PHILIPPINES, the adoption must be pursuant to the DAA
if the adopter is a RESIDENT of the Philippines. (He must be a Resident Citizen)
§ If a FOREIGNER, the provisions of the DAA shall apply when such foreigner has been living
in the Philippines for at least three consecutive years prior to the filing of the petition for
adoption and such residence must be maintained until the adoption decree is entered (however
this condition may be waived).
o INTER-COUNTRY ADOPTION ACT OF 1995 (R.A. 8043)

§ R.A. 8043 intended to govern the adoption of a Filipino child in a foreign country by a person
who may not even be qualified to adopt under the Family Code or the DAA.
§ In Inter-country adoption, the adopter may either be a foreigner or a Filipino citizen
permanently residing abroad where the petition for adoption is filed, the supervised child
custody is undertaken and the decree of adoption is issued outside of the Philippines.
§ If the adopter is a FILIPINO CITIZEN but is a PERMANENT RESIDENT OF A FOREIGN
COUNTRY, the adoption must be pursuant to ICAA.
§ If the adopter is an ALIEN (NOT A CITIZEN), the ICAA shall apply when he (1) does not
satisfy the residency requirement under Sec. 7(b) of the DAA, or (2) that the residency
requirement cannot be waived because the conditions does not apply to him.
• JURISDICTION AND VENUE
o JURISDICTION - The Family Court has exclusive jurisdiction to hear and decide petitions for
adoption of children and its revocation. If there is no FC available, file it before the RTC.
o VENUE - The petition for adoption shall be filed with the Family Court of the province or city
where the prospective adoptive parents reside. (Section 6, Rule on Adoption, A.M. No. 02-6-02-SC)
§ Domestic adoption – Family court of the province or city where the prospective ADOPTIVE
PARENTS reside;
§ Rescission of adoption - Family court of the province or city where the ADOPTEE resides; and
§ Inter-Country Adoption - Family court of the province or city or the Inter-Country Adoption
Board (Section 28, Rule on Adoption, A.M. No. 02-6-02-SC)
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DOMESTIC ADOPTION ACT OF 1998

AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTIC
ADOPTION OF FILIPINO CHILDREN AND FOR OTHER PURPOSES
REPUBLIC ACT NO. 8552
• WHO ARE QUALIFIED TO ADOPT; The adopter may either be a (1) citizen of the Philippines or (2)
an alien in domestic adoption, as long as they are qualified to adopt under the provisions of the DAA;
o FILIPINO ADOPTER (LPG-CESP)

1. He must be of legal age;
2. He must be in possession of full civil capacity and legal rights;
3. He must be of good moral character;
4. He must not have been convicted of any crime involving moral turpitude;
5. He must be emotionally and psychologically capable of caring for children;
6. He must be at least sixteen (16) years older than the adoptee; and (The requirement of a 16-
year difference between the age of the adopter and adoptee may be waived when the adopter
is the biological parent of the adoptee or is the spouse of the adoptee's parent;)
7. He must be in a position to support and care for his children in keeping with the means of the
family. (Section 7 (b), Domestic Adoption Act of 1998, Republic Act No. 8552)
§ Can a student adopt Judge Wagan? No. The DAA requires that the adoptee must be at
least sixteen (16) years older than the adoptee. However, the requirement of a 16-year
difference between the age of the adopter and adoptee may be waived when the adopter
is the biological parent of the adoptee or is the spouse of the adoptee's parent. In the given
situation, this requirement is not present.
o ALIEN ADOPTER (SCT-DAM)
1. Possessing the same qualifications as stated for Filipino nationals (LPG-CESP);

2. His country has diplomatic relations with the Republic of the Philippines; - THERE MUST BE
RECIPROCITY
3. His government allows the adoptee to enter his country as his adopted child – ACCORDING
TO JUDGE WAGAN, IT IS ALSO REQUIRED THAT THE COUNTRY OF THE ADOPTER
MUST ALLOW THE ADOPTED CHILD TO RESIDE. (jurisprudence)
4. He has been living in the Philippines for at least three (3) continuous years prior to the filing
of the petition for adoption;
5. He must maintain such residence until the adoption decree is entered; and
6. That he has been certified by his diplomatic or consular office or any appropriate government
agency to have the legal capacity to adopt in his country. (they can get this in the embassy)
§ The requirements on residency and certification of the alien's qualification to adopt in his
country may be waived for the following:
1. A former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree
of consanguinity or affinity; or
2. One who seeks to adopt the legitimate child of his Filipino spouse; or
3. One who is married to a Filipino citizen and seeks to adopt jointly with his spouse a
relative within the fourth (4th) degree of consanguinity or affinity of the Filipino
spouse. (Section 7 (b), Domestic Adoption Act of 1998, Republic Act No. 8552)
32
o GUARDIAN; The GUARDIAN with respect to the ward after the termination of the guardianship
and clearance of his financial accountabilities. (Section 7 (c), Domestic Adoption Act of 1998,
Republic Act No. 8552)
o JOINT ADOPTION BY THE PARENTS;
GENERAL RULE: HUSBAND AND THE WIFE are REQUIRED to jointly adopt.
EXCEPT in the following cases:

1. If one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or
2. If one spouse seeks to adopt his own illegitimate child: Provided, however, That the other
spouse has signified his consent thereto; or
3. 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.
§ The requirement of joint adoption by husband and wife is mandatory and this is in
consonance with the concept of joint parental authority over the child which is the ideal
situation. As the child to be adopted is elevated to the level of a legitimate child, it is but
natural to require the spouses to adopt jointly. The rule also insures harmony between the
spouses.
§ Joint adoption is still necessary even if those to be adopted have already been emancipated
having reached the age of majority. This is because parental authority is merely just one of
the effects of legal adoption.
§ In the adoption of his own illegitimate child (a child out of wedlock), the spouse of the
adopter must give his/her consent and personal service of summons must be given to the
adopter’s spouse and all his legitimate children. This is to ensure that their substantive
rights are protected. A constructive summon is not sufficient and will make the decree of
adoption annullable by way of Annulment of Judgment on the ground of extrinsic fraud.
§ If one spouse seeks to adopt the illegitimate son/daughter of the other spouse, the law
does not exempt this adoption from the requirement of joint adoption by spouses.
Adoption is still necessary on the part of the parent-spouse for the purpose of improving
the child’s status to that of legitimacy.
• WHO MAY BE ADOPTED; The adopter may either be a (1) citizen of the Philippines or (2) an alien in
domestic adoption, as long as they are qualified to adopt under the provisions of the DAA;
(1) A Child legally available for adoption which refers to a child in whose favor a certification was
issued by the DSWD that he/she is legally available for adoption after the fact of abandonment or
neglect has been proven through the submission of pertinent documents, or one who was
voluntarily committed by his/her parent(s) or legal guardian.
(2) The legitimate child of one spouse, by the other spouse - The adopter here is the spouse of the
parent of the legitimate child. It is not necessary that the legitimate child of the other spouse must
be below eighteen years of age. The adoptee may even be of legal age if he or she is the CHILD BY
NATURE of the adopter’s spouse.
(3) An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy
- If the adopter is married and seeking to adopt his/her own illegitimate child, the other spouse
must signify his consent but need not join in the adoption. If it is the other spouse (not his/her own
illegitimate) who seeks to adopt the illegitimate child of the other, then both of the spouses must
33
jointly adopt. In any case, the illegitimate child may be adopted even if he or she is already of legal
age.
(4) A person of legal age regardless of civil status, IF, prior to the adoption, said person has been
consistently considered and treated by the adopters as their own child since minority;
(5) A child whose adoption has been previously rescinded;
(6) A child whose biological or adoptive parents have died: PROVIDED, that no proceedings shall
be initiated within six (6) months from the time of death of said parents; or
(7) A child not otherwise disqualified by law or these rules.
• CONTENTS OF THE PETITION
In ALL petitions, it shall be alleged:
1. The first name, surname or names, age and residence of the adoptee as shown by his record of
birth, baptismal or foundling certificate and school records.
2. That the adoptee is not disqualified by law to be adopted.
3. The probable value and character of the estate of the adoptee.
4. The first name, surname or names by which the adoptee is to be known and registered in the Civil
Registry.
If the adopter is a FILIPINO CITIZEN, the petition shall allege the following:
1. The jurisdictional facts;

2. LPG-CESP
If the adopter is an ALIEN, the petition shall allege the following;
1. The jurisdictional facts;

2. LPG-CESP
3. That his country has diplomatic relations with the Republic of the Philippines;
4. That he has been certified by his diplomatic or consular office or any appropriate government
agency to have the legal capacity to adopt in his country and his government allows the adoptee
to enter his country as his adopted child and reside there permanently as an adopted child; and
5. That he has been living in the Philippines for at least three (3) continuous years prior to the filing
of the petition and he maintains such residence until the adoption decree is entered.
• The requirements of certification of the alien's qualification to adopt in his country and of residency
may be waived if the alien:
(1) Is a former Filipino citizen who seeks to adopt a relative within the fourth degree of
consanguinity or affinity; or
(2) seeks to adopt the legitimate child of his Filipino spouse; or
(3) is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the
fourth degree of consanguinity or affinity of the Filipino spouse.
If the adopter is the LEGAL GUARDIAN of the adoptee, the petition shall allege that guardianship had
been terminated and the guardian had cleared his financial accountabilities.
If the adopter is MARRIED, the spouse shall be a co-petitioner for joint adoption except if:
1. One spouse seeks to adopt the legitimate child of the other, or
2. If one spouse seeks to adopt his own illegitimate child and the other spouse signified written
consent thereto, or
3. If the spouses are legally separated from each other.
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If the ADOPTEE IS A FOUNDLING, the petition shall allege the entries which should appear in his
birth certificate, such as name of child, date of birth, place of birth, if known; sex, name and citizenship
of adoptive mother and father, and the date and place of their marriage.
If the petition prays for a CHANGE OF NAME, it shall also state the cause or reason for the change of
name.
In case the petition also seeks RECTIFICATION OF A SIMULATED BIRTH, it shall allege that:
1. Petitioner is applying for rectification of a simulated birth;

2. The simulation of birth was made prior to the date of effectivity of Republic Act No. 8552 and the
application for rectification of the birth registration and the petition for adoption were filed within
five years from said date;
3. The petitioner made the simulation of birth for the best interests of the adoptee; and
4. The adoptee has been consistently considered and treated by petitioner as his own child. (Section
8, Rule on Adoption, A.M. No. 02-6-02-SC)
In case the adoptee is a foundling, an abandoned, dependent or neglected child, the petition shall
allege:
1. The facts showing that the child is a foundling, abandoned, dependent or neglected;
2. The names of the parents, if known, and their residence. If the child has no known or living parents,
then the name and residence of the guardian, if any;
3. The name of the duly licensed child-placement agency or individual under whose care the child is
in custody; and
4. That the Department, child-placement or child-caring agency is authorized to give its consent.
(Section 9, Rule on Adoption, A.M. No. 02-6-02-SC)
• Who is a foundling?
• The DSWD shall be the one who will declare that a child is a foundling.
• The declaration made by the DSWD shall be considered as the certification required by the
rules.
• There will also be investigation conducted by the DWSD.
• When it comes to foundlings, the consent of the biological parent is not required. It is a short-
cut proceeding.
In case the petition also prays for CHANGE OF NAME, the title or caption must contain:
1. The registered name of the child;

2. Aliases or other names by which the child has been known; and
3. The full name by which the child is to be known. (Section 10, Rule on Adoption, A.M. No. 02-6-02-SC)
ANNEXES TO THE PETITION; The following documents shall be attached to the petition:
1. Certification issued by the DSWD that the child is legally available for adoption. (Section 8, R.A.
9523)
2. Birth, baptismal or foundling certificate, as the case may be, and school records showing the name,
age and residence of the adoptee;
3. Affidavit of consent of the following: (a) The adoptee, if ten (10) years of age or over; (b) The
biological parents of the child, if known, or the legal guardian, or the child-placement agency,
child-caring agency, or the proper government instrumentality which has legal custody of the
child; (c) The legitimate and adopted children of the adopter and of the adoptee, if any, who are
35
ten (10) years of age or over; (d) The illegitimate children of the adopter living with him who are
ten (10) years of age or over; and (e) The spouse, if any, of the adopter or adoptee.
4. Child study report on the adoptee and his biological parents;
5. If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate
government agency that he has the legal capacity to adopt in his country and that his government
allows the adoptee to enter his country as his own adopted child unless exempted under Section
4(2);
6. Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to
adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country
Adoption Board; and
7. Decree of annulment, nullity or legal separation of the adopter as well as that of the biological
parents of the adoptee, if any. (Section 11, Rule on Adoption, A.M. No. 02-6-02-SC)
• Notice requirement - Notice must be made through publication to protect the interests of all persons
concerned. The notice must carry the true name of the child to be adopted because the person to be
served by the notice have the right to expect the use of the child’s officially recorded name. A defect on
this requirement amounts to a failure of service by publication and the court acquired no jurisdiction
over the case.
o DOMESTIC ADOPTION – At the discretion of the court, copies of the order of hearing shall also
be furnished the (1) Office of the Solicitor General through the provincial or city prosecutor, the (2)
Department and the (3) biological parents of the adoptee, if known. If a change in the name of the
adoptee is prayed for in the petition, notice to the Solicitor General shall be mandatory. (Section
12, Rule on Adoption, A.M. No. 02-6-02-SC)
§ Notice to the SOLGEN is required if there is a prayer for the changing of name.
o RESCISSION OF ADOPTION – Adopter
o INTERCOUNTRY ADOPTION – Biological parents
• Publication requirement – the court order shall direct that a copy thereof be published before the date
of hearing at least once a week for three successive weeks in a newspaper of general circulation in the
province or city where the court is situated;
• Child and Home study reports - In preparing the child study report on the adoptee, the concerned
social worker shall verify with the Civil Registry the real identity and registered name of the adoptee.
If the birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility of the
social worker to register the adoptee and secure a certificate of foundling or late registration, as the
case may be.
o The social worker shall establish that the child is legally available for adoption and the documents
in support thereof are valid and authentic, that the adopter has sincere intentions and that the
adoption shall inure to the best interests of the child.
o In case the adopter is an alien, the home study report must show the legal capacity to adopt and
that his government allows the adoptee to enter his country as his adopted child in the absence of
the certification required under Section 7(b) of Republic Act No. 8552.
o If after the conduct of the case studies, the social worker finds that there are grounds to deny the
petition, he shall make the proper recommendation to the court, furnishing a copy thereof to the
petitioner.
• Hearing – Upon satisfactory proof that the order of hearing has been published and jurisdictional
requirements have been complied with, the court shall proceed to HEAR the petition.
o The petitioner and the adoptee must personally appear and the former must testify before the
presiding judge of the court on the date set for hearing. The court shall verify from the social worker
and determine whether the biological parent has been properly counseled against making hasty
36
decisions caused by strain or anxiety to give up the child; ensure that all measures to strengthen
the family have been exhausted; and ascertain if any prolonged stay of the child in his own home
will be inimical to his welfare and interest.
o Who will you present? The petitioner (adopter). If there is joint adoption, then present both
spouses. The social welfare officer must also be presented with regards to the child home study
and the home study reports.
• Supervised trial custody - Before issuance of the decree of adoption, the court shall give the adopter
trial custody of the adoptee for a period of at least six (6) months within which the parties are expected
to adjust psychologically and emotionally to each other and establish a bonding relationship. The trial
custody shall be monitored by the social worker of the court, the Department, or the social service of
the local government unit, or the child-placement or child-caring agency which submitted and
prepared the case studies. During said period, temporary parental authority shall be vested in the
adopter.
o The court may, motu proprio or upon motion of any party, REDUCE the period or EXEMPT the
parties if it finds that the same shall be for the best interests of the adoptee, stating the reasons
therefor. SCT is not required if the child has been LIVING and TREATED AS HIS OWN by the
adopter.
o An alien adopter however must complete the 6-month trial custody except UNDER THE
CONDITIONS WHERE RESIDENCY AND CERTIFICATION ARE DISPENSED WITH.
o If the child is below seven (7) years of age and is placed with the prospective adopter through a
pre-adoption placement authority issued by the Department, the court shall order that the
prospective adopter shall enjoy all the benefits to which the biological parent is entitled from the
date the adoptee is placed with him.
o The social worker shall submit to the court a report on the result of the trial custody within two
weeks after its termination.
o There is temporary parental authority.
• Decree of adoption - If the supervised trial custody is satisfactory to the parties and the court is
convinced from the trial custody report and the evidence adduced that the adoption shall redound to
the best interests of the adoptee, a DECREE OF ADOPTION shall be issued. (Section 16, Rule on
Adoption, A.M. No. 02-6-02-SC)
• The decree shall take effect as of the date the original petition was filed even if the petitioners die
before its issuance.
• The decree shall:
A. State the name by which the child is to be known and registered;
B. Order:
(1) The Clerk of Court to issue to the adopter a certificate of finality upon expiration of the 15-
day reglementary period within which to appeal;
(2) The adopter to submit a certified true copy of the decree of adoption and the certificate of
finality to the Civil Registrar where the child was originally registered within thirty (30)
days from receipt of the certificate of finality. In case of change of name, the decree shall
be submitted to the Civil Registrar where the court issuing the same is situated.
(3) The Civil Registrar of the place where the adoptee was registered:
a. to annotate on the adoptee's original certificate of birth the decree of adoption within
thirty (30) days from receipt of the certificate of finality;
37
b. to issue a certificate of birth which shall not bear any notation that it is a new or
amended certificate and which shall show, among others, the following: registry
number, date of registration, name of child, sex, date of birth, place of birth, name
and citizenship of adoptive mother and father, and the date and place of their
marriage, when applicable;
c. to seal the original certificate of birth in the civil registry records which can be opened
only upon order of the court which issued the decree of adoption; and
d. to submit to the court issuing the decree of adoption proof of compliance with all the
foregoing within thirty days from receipt of the decree.
C. If the adoptee is a foundling, the court shall order the Civil Registrar where the foundling was
registered, to annotate the decree of adoption on the foundling certificate and a new birth
certificate shall be ordered prepared by the Civil Registrar in accordance with the decree.
• Duty of the clerk of court - The Clerk of Court shall keep a book of adoptions showing the date of
issuance of the decree in each case, compliance by the Civil Registrar with Section 16(B)(3) and all
incidents arising after the issuance of the decree. (Section 17, Rule on Adoption, A.M. No. 02-6-02-SC)
• Appeal – Ordinary appeal via Notice of appeal (15 days). Who may appeal? The adopter (if denied) or
the oppositors. Can the OSG appeal? Yes. Because they have an interest in the adoption proceedings
considering that they represent the government. The Governemnt has to be represented by the OSG
(through their prosecutors). Their prosecutors shall cross-examine the petitioner and the social worker.
• X and Y has two (2) children (Z and A). X and Y are both over the age of 70. Z, the eldest daughter of
XY went to Dubai to work as an actress. After ten years, Z met B and baby 123 was born. Baby 123
went to the Philippines and lived under the house of X and Y. The latter wanted to adopt the former.
Baby 123 filed an express affidavit of consent. If you are the judge, will you allow the petition for
adoption? No. The consent of the biological parents are lacking. It is required that the consent of the
biological parent must be given (since it is obvious in this case that they are present and alive) unless
the child has been abandoned or the biological parents’ whereabouts cannot be ascertained.
• Can the adoptee use the defense of relative under the RPC if he killed the attacker of the adopter?
There is no jurisprudence as to this matter. But by looking at the intention of the law, the first argument
is that the defense of a relative is not available because it is premised upon relatives who are related by
blood. Moreover, the law (RPC) made a distinction between relationship by blood (defense of relative)
and for the defense of a stranger. On the other hand, it may also be argued that such defense can be
raised because by the clear import of the DAA, an adopted child shall be elevated to the status of a
legitimate child. Hence, the adopted child can be covered by the term “relative” in this defense.
INTER-COUNTRY ADOPTION ACT OF 1995

AN ACT ESTABLISHING THE RULES TO GOVERN INTER-COUNTRY
ADOPTION OF FILIPINO CHILDREN, AND FOR OTHER PURPOSES
Republic Act No. 8043, June 7, 1995
• Inter-Country Adoption as the Last Resort. — The Board shall ensure that all possibilities for adoption
of the child under the Family Code have been exhausted and that inter-country adoption is in the best
interest of the child. Towards this end, the Board shall set up the guidelines to ensure that steps will be
taken to place the child in the Philippines before the child is placed for inter-country adoption:
Provided, however, That the maximum number that may be allowed for foreign adoption shall not
exceed six hundred (600) a year for the first five (5) years.
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• Who may adopt? Any foreign national or a Filipino citizen permanently residing abroad who has the
qualifications and none of the disqualifications under the Act may file an Application if he/she:
(1) Is at least twenty-seven (27) years of age and is at least sixteen (16) years older than the child to be
adopted at the time of the filing of the application, unless the applicant is the parent by nature of
the child to be adopted or is the spouse of such parent by nature;
(2) Has the capacity to act and assume all the rights and responsibilities incidental to parental
authority under his/her national law;
(3) Has undergone appropriate counseling from an accredited counselor in his/her country;
(4) Has not been convicted of a crime involving moral turpitude;
(5) Is eligible to adopt under his/her national law;
(6) Can provide the proper care and support and give the necessary moral values and example to the
child and, in the proper case, to all his/her other children;
(7) Comes from a country;
(a) With whom the Philippines has diplomatic relations;
(b) Whose government maintains a foreign adoption agency; and
(c) Whose laws allow adoption; and
(8) Files jointly with his/her spouse, if any, who shall have the same qualifications and none of the
disqualifications to adopt as prescribed above. (Section 27, Amended Implementing Rules and
Regulations on Inter-Country Adoption, Amended IRR-RA 8043, [January 8, 2004])
• Where to file? A verified petition to adopt a Filipino child may be filed by a foreign national or Filipino
citizen permanently residing abroad with: (1) The Family Court having jurisdiction over the place
where the child resides or may be found. (2) It may be filed directly with the Inter-Country Adoption
Board. (Section 28, Rule on Adoption, A.M. No. 02-6-02-SC, [July 31, 2002])
EFFECTS OF ADOPTION
• UNDER THE DAA; Adoption shall have the following effects:

1. Sever all legal ties between the biological parent(s) and the adoptee, except when the biological
parent is the spouse of the adopter,
2. Deem the adoptee as a legitimate child of the adopter;
3. Give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent
and child, including but not limited to:
(a) the right of the adopter to choose the name the child is to be known; and
(b) the right of the adopter and adoptee to be legal and compulsory heirs of each other. (Section
33, Rules and Regulations to Implement the Domestic Adoption Act of 1998, IRR of RA 8552,
[December 8, 1998])
• BENEFITS TO THE ADOPTIVE PARENTS; The adoptive parents shall, with respect to the adopted
child, enjoy all the benefits to which biological parents are entitled. Maternity and paternity benefits
and other benefits given to biological parents upon the birth of a child shall be enjoyed if the adoptee
is below seven (7) years of age as of the date the child is placed with the adoptive parents thru the Pre-
Adoptive Placement Authority issued by the Department. (Section 34, Rules and Regulations to Implement
the Domestic Adoption Act of 1998, IRR of RA 8552, [December 8, 1998]
• DEPRIVATION AND TRANSFER OF PARENTAL AUTHORITY - Except in cases where the

biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the
adoptee shall be severed and the same shall then be vested on the adopter(s). (Section 16, Domestic
Adoption Act of 1998, Republic Act No. 8552, [February 25, 1998])
39
o When the adopter dies during the time that the adopted is still a minor or incapacitated, the
parental authority of the biological parent is deemed to have restored.
• LEGITIMACY - The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all
intents and purposes and as such is entitled to all the rights and obligations provided by law to
legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee
is entitled to love, guidance, and support in keeping with the means of the family. (Section 17, Domestic
Adoption Act of 1998, Republic Act No. 8552, [February 25, 1998])
o The personal relationship established by adoption is limited to the adopting parents and does not
extend to their other relatives (except as otherwise provided for by law).
o The adopted child cannot be considered as a relative of the descendants and collaterals of the
adopting parents, nor of the legitimate children which they may have after the adoption except
that the law imposes certain impediments to marriage by reason of adoption.
o Neither are the children of the adopted considered as descendants of the adopter.
o This personal relationship shall be applicable only to situations where no relationship by blood
exists between them (when the adoptee is the illegimitate child of the adopter). In such case, since
the illegitimate child is raised to the status of a legitimate child, he shall not be prohibited to inherit
by way of intestate succession from the parents of the adopter.
• RIGHT TO USE THE SURNAME OF THE ADOPTER - An amended certificate of birth shall be
issued by the Civil Registry, as required by the Rules of Court, attesting to the fact that the adoptee is
the child of the adopter(s) by being registered with his/her surname. The original certificate of birth
shall be stamped "cancelled" with the annotation of the issuance of an amended birth certificate in its
place and shall be sealed in the civil registry records. The new birth certificate to be issued to the
adoptee shall not bear any notation that it is an amended issue. (Section 14, Domestic Adoption Act of
1998, Republic Act No. 8552, [February 25, 1998])
o The rule under jurisprudence (Valdez-Johnson v. Republic [G.R. No. L-18284, April 30, 1963]) that only
the surname of the adopting parent and not to the surname acquired by the adopting parent by
virtue of marriage shall apply only in the following instances: (a) If the wife adopts her illegitimate
child with the consent of the husband as one of the exceptions to the joint adoption by spouses. In
this situation, the ruling in the case shall apply since the consent of the husband does not have the
effect of making him an adopting parent; (b) If the spouses are legally separated and only the wife
filed the adoption; and (b) If the adoption was made by a woman prior to her marriage and
thereafter, she contracted a marriage. (RABUYA)
o May an illegitimate child, upon adoption by her natural father, use the surname of her natural
mother as her middle name? YES. There is no law prohibiting an illegitimate child adopted by her
natural father to use, as middle name, her mother’s surname.
• RIGHT TO SUPPPORT - One of the rights being enjoyed by legitimate children is the right to demand
support, which can be charged against the absolute community or the conjugal partnership gains. The
adopted cannot demand support from his or her biological parents. The right to demand support is
based on the legal relation that exists between the person entitled to support and the person obliged to
give support. As a consequence of the severance of legal ties between the adopted and his or her
biological parents, the basis of the right to demand support and/or the obligation to give support is
likewise terminated. Hence, the adopter and the adopted are mutually bound to support each other.
• SUCCESSION
o COMPULSORY HEIR - Is the adopted a compulsory heir of the adopter? Although the Family
Code and the Domestic Adoption Act do not expressly declare the entitlement of an adopted child
40
to a legitime in the estate of the adopter, it is believed that he or she is a compulsory heir of the
adopter. Both the Family Code and the Domestic Adoption Act declare that an adopted child is to
be considered a legitimate child of the adopter “for all intents and purposes” and, therefore,
entitled to all the rights and obligations provided by law to legitimate children without
discrimination of any kind, and these rights include the right to the legitime and other successional
rights granted under the Civil Code. In other words, an adopted child is a compulsory heir of the
adopter and his legitime is the same as that granted to a legitimate child of the adopter.
o LEGAL OR INTESTATE HEIR - With respect to legal or intestate succession, the adopter and the
adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. Note
that Section 18 of the Domestic Adoption Act amended the provisions of Article 190 of the Family
Code. Under the provisions of the Domestic Adoption Act, the adopter and the adoptee are legal
heirs of each other, in the same way and in the same manner that a legitimate child and his/her
legitimate parents are legal heirs of each other.
o SUCCESSIONAL RIGHTS BETWEEN ADOPTED AND BIOLOGICAL PARENTS - It is

submitted by Dr. Rabuya that the provisions of the DAA, in so far as the effects of adoption on
succession is concerned, have impliedly repealed the provisions of the Family Code granting the
adopted and his or her biological parent(b) the reciprocal rights of succession in legal or intestate
succession.
RESCISSION OF ADOPTION
• Rescission – Adoption, being in the best interest of the child, shall not be subject to rescission by the
adopter(s).
o RULE: THE ADOPTER CANNOT FILE FOR A RESCISSION OF ADOPTION.
o However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil
Code. The adopter can always for a valid reason, cause the severance of the legal ties of adoption
(such as the denial to an adopted child of his legitime based on the grounds provided for by the
law). Legal basis – Section 19 of the DAA and Civil Code
o Who may file? A verified petition for the rescission of adoption of adoptee may be filed by the
ADOPTEE who is over eighteen (18) years of age, or with the assistance of the Department, if he is
a minor, or if he is over eighteen (18) years of age but is incapacitated, by his guardian or counsel.
(Section 19, Rule on Adoption, A.M. No. 02-6-02-SC)
o Where to file? The petition shall be filed with the Family Court of the city or province where the
adoptee resides.
o When to file? The adoptee, if incapacitated, must file the petition for rescission or revocation of
adoption within five (5) years after he reaches the age of majority, or if he was incompetent at the
time of the adoption, within five (5) years after recovery from such incompetency.
o Grounds for rescission - Upon petition of the adoptee (who must be over 18 years of age) or with
the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated,
as guardian/counsel, the adoption may be rescinded on any of the following grounds committed
by the adopter(s): (PASA)
(1) Repeated physical and verbal maltreatment by the adopter(s) despite having undergone
counseling;
(2) Attempt on the life of the adoptee;
41
(3) Sexual assault or violence; or

(4) Abandonment and failure to comply with parental obligations.
• Effects of rescission; Rescission of adoption shall have the following effects:
(1) Restoration of parental authority of the adoptee's biological parent(s), if known or the legal custody
of the Department of the adoptee if still a minor or incapacitated.
(2) The reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be
extinguished.
(3) Cancellation of the new birth certificate of the adoptee by the Civil Registrar as ordered by the
court and restoration of the adopter's original birth certificate.
(4) Succession rights shall revert to its status prior to adoption but only as of the date of judgment of
judicial rescission.
(5) Vested rights acquired prior to judicial rescission shall be respected.
PROCEEDINGS FOR HOSPITALIZATION OF INSANE PERSONS
• A petition for commitment shall be filed whenever it is for the (1) public welfare, or (2) for the welfare
of said person who, in the judgment of the Secretary of Health, is insane and such person or the one
having charge of him is opposed to his being taken to a hospital or other place for the insane. (Section
1, Rule 101)
• Insanity generally denotes that condition of mind which is so impaired in function or so deranged as
to induce a deviation from normal conduct in the person so afflicted. More particularly, it denotes a
mind that is unsound, deranged, delirious or distracted. The fact that a person is acting crazy is not
conclusive that he is insane. The popular meaning of the word "crazy" is not synonymous with the legal
terms "insane", "non compos mentis", "unsound mind", "idiot" or "lunatic".
o Are they the same under the exempting circumstances of the RPC? No.
• Jurisdiction and Venue – Regional Trial Court of the province where the person alleged to be insane
is found. (Section 1, Rule 101)
• Who may file? The petition shall be filed by the Secretary of Health (with the assistance of the city or
provincial prosecutor) in all cases.
• What should be filed? PETITION FOR COMMITMENT
• When will it be filed? When, in the opinion of the Secretary of Health, the commitment is for the public
welfare, or for the welfare of said person who, in his judgment, is insane and such person or the one
having charge of him is opposed to his being taken to a hospital or other place for the insane. (Section
1, Rule 101)
HABEAS CORPUS
• Habeas corpus - as a writ directed to the person detaining another and commanding him to produce
the body of the prisoner at a certain time and place, with the day and the cause of his caption and
42
detention, to do, and receive whatsoever the court or judge awarding the writ shall consider in that
behalf. (FESTIN, pg. 203-204) What does “habeas corpus” literally means? YOU HAVE THE BODY!
• Although the privilege of the writ of habeas corpus may be suspended in cases of invasion, rebellion,
or when the public safety requires it, the writ itself may not be suspended. (In re Salibo v. Warden, G.R.
No. 197597, [April 8, 2015])
• Purpose – the purpose of the writ of habeas corpus is to determine whether or not a particular person
is legally held. The ULTIMATE PURPOSE of the writ of habeas corpus is to relieve a person from
unlawful restraint. (Adonis v. Tesoro, G.R. No. 182855)
• The writ is not ordinarily granted where the law provides for other remedies in the regular course, and
in the absence of exceptional circumstances. Hence, it cannot take the place of an appeal, certiorari or
writ of error.
• Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled
thereto under Article 211 of the Family Code.
• Release of the person - When the release of the persons in whose behalf the application for a Writ of
Habeas Corpus was filed is effected, the Petition for the issuance of the writ becomes moot and
academic. (Pulido v. Abu, G.R. No. 170924)
o EXCEPTION: The court may not dismiss a petition for writ of habeas corpus on the ground that
the minor had already been produced in court. In cases involving minors, the purpose of a petition
for habeas corpus is not limited to the production of the child before the court. The main purpose
of the petition for habeas corpus is to determine who has the rightful custody over the child. (Bagtas
v. Santos, G.R. No. 166682)
• Concept of restraint – Actual and effective, and not merely nominal or moral, restraint is required.
However, actual physical restraint is not always required; any restraint which will prejudice freedom
of action is sufficient.
o A restrictive custody and monitoring of movements or whereabouts of police officers under

investigation by their superiors is not a form of illegal detention or restraint of liberty. It is a
nominal restraint which is beyond the ambit of habeas corpus. It is neither actual nor effective
restraint that would call for the grant of the remedy prayed for.
• When it is availed of? The writ of habeas corpus extends to all cases of illegal confinement or
detention by which any person is deprived of his liberty or by which the rightful custody of a person
is being withheld from the one entitled thereto.
o As a general rule, it will apply to all cases/instances of illegal detention. However, there are
instances when the even though there is detention, it is not considered as illegal.
X was charged for the crime of frustrated murder. He applied for bail and it was granted by the
court. Notwithstanding the granting of bail, the court did not release him. Is there illegal
detention already? Is habeas corpus the correct remedy? NO. There is no illegal detention yet in
this case because there is no release order issued for the release of the person. Hence, his detention
at that point in time is still legal. If there has been a release order issued, then the remedy of habeas
corpus is already available.
RATIONALE: The writ obtains immediate relief for those who have been illegally confined or
imprisoned without sufficient cause. The writ, however, should not be issued when the custody
43
over the person is by virtue of a judicial process or a valid judgment. The most basic criterion for
the issuance of the writ, therefore, is that the individual seeking such relief is illegally deprived of
his freedom of movement or placed under some form of illegal restraint. If an individual's liberty
is restrained via some legal process, the writ of habeas corpus is unavailing.
o 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.
o The term "court" in this context includes quasi-judicial bodies of governmental agencies authorized
to order the person's confinement, like the Deportation Board of the Bureau of Immigration. (Go,
Sr. v. Ramos, G.R. Nos. 167569)
o The objective of the writ is to determine whether the confinement or detention is valid or lawful. If
it is, the writ cannot be issued. What is to be inquired into is the legality of a person's detention as
of, at the earliest, the filing of the application for the writ of habeas corpus, for even if the detention
is at its inception illegal, it may, by reason of some supervening events, such as the instances
mentioned in Section 4 of Rule 102, be no longer illegal at the time of the filing of the application.
(Ampatuan v. Macaraig, G.R. No. 182497)
o When an alien is detained by the Bureau of Immigration for deportation pursuant to an order of
deportation by the Deportation Board, the Regional Trial Courts have no power to release such
alien on bail even in habeas corpus proceedings because there is no law authorizing it. (Go, Sr. v.
Ramos, G.R. Nos. 167569)
o When a person is convicted of the crime of rape that is punishable by RP and while serving his
sentence, subsequently married the victim; the counsel for the convicted felon may avail of the
remedy of habeas corpus or a motion in the court which convicted him, to nullify the execution of
his sentence or the order of his commitment on the ground that a supervening development had
occurred despite the finality of the judgment. The court cannot argue that it has lost the jurisdiction
because the court never lose jurisdiction so long as its decision has not yet been fully implemented
and satisfied. (Festin, pg. 213)
o A petition for habeas corpus cannot be granted if the accused has only served the MINIMUM of
his sentence as he must serve his sentence up to its maximum term.
• POST-CONVICTION REMEDY
In the recent case of Feria v. Court of Appeals, we ruled that review of a judgment of conviction is
allowed in a petition for the issuance of the writ of habeas corpus only in very specific instances, such
as when, as a consequence 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.
o X was convicted of rape of Y. The encounter resulted to Y being pregnant to Z. A, who is the son
of X, sought to determine the paternity of Z. To gather a sample for a DNA test, A asked his
friend B, who is a classmate of Z, to spit into a new sterile cup so that A would be able to have
a sample for the test. After testing, the DNA Laboratory rendered a preliminary report, which
showed that X could not have sired Z due to the absence of a match between the pertinent
genetic markers in A’s sample and those of any of the other samples, including the sample from
Z. Hence, A filed a petition for habeas corpus on the ground that the DNA analysis on paternity
shows conclusively that X is not the father of Z. Hence, his conviction for rape, which was based
on the fact that Z was sired as a result of the alleged rape, cannot stand and must be set aside. If
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you are the judge, would you grant the petition? CAN YOU ASSAIL A FINAL JUDGMENT OF
CONVICTION THROUGH A WRIT OF HABEAS CORPUS? No. A habeas corpus petition
reaches the body, but not the record of the case. Clearly, mere errors of fact or law, which did not
have the effect of depriving the trial court of its jurisdiction over the case and the person of the
defendant, are not correctible in a petition for the issuance of the writ of habeas corpus; if at all,
these errors must be corrected on certiorari or on appeal, in the form and manner prescribed by
law. In such a case, the denial of a constitutional right must be alleged by X to avail of this remedy
as a post-conviction remedy. In fine, we find that X invokes the remedy of the petition for a writ of
habeas corpus to seek a re-examination of the records of case which convicted X, without asserting
any legal grounds therefor. For all intents and purposes, X seeks a reevaluation of the evidentiary
basis for his conviction. The court is being asked to reexamine the weight and sufficiency of the
evidence in this case, not on its own, but in light of the new DNA evidence that the petitioner seeks
to present to this Court. This relief is outside the scope of a habeas corpus petition. The petition for
habeas corpus must, therefore, fail. (De Villa v. The Director, New Bilibid Prisons, G.R. No. 158802,
[November 17, 2004], 485 PHIL 368-395)
o When may a final judgment be collaterally attacked through a writ of habeas corpus? It can be
invoked by the attendance of a special circumstance that requires immediate action. In such
situations, the inquiry on a writ of habeas corpus would be addressed, not to errors committed by
a court within its jurisdiction, but to the question of whether the proceeding or judgment under
which a person has been restrained is a complete nullity. The probe may thus proceed to check on
the power and authority, itself an equivalent test of jurisdiction, of the court or the judge to render
the order that so serves as the basis of imprisonment or detention. 41 It is the nullity of an assailed
judgment of conviction which makes it susceptible to collateral attack through the filing of a
petition for the issuance of the writ of habeas corpus. (De Villa v. The Director, New Bilibid Prisons,
G.R. No. 158802, [November 17, 2004], 485 PHIL 368-395)
• Who may grant? (1) Supreme Court or any Justice thereof – on any day and at any time; anywhere in
the Philippines (2) Court of Appeals or any Justice thereof – only on instances allowed by law;
anywhere in the Philippines – enforceable anywhere; Regional Trial Court or any Judge thereof – on
any day and at any time; only within the court’s judicial district; When before the RTC? When the person
detained is within the territorial jurisdiction of the RTC. (RTC ENFORCEABLE ONLY WITHIN
JUDICIAL REGION); MTC – when there is no available RTC judge; Sandiganbayan – only if it is IN
AID OF ITS APPELLATE JURISDICTION
o Can it be filed before the Court of Tax Appeals? No. It cannot be filed before the CTA because of
the nature of the case.
o Does the principle of “Hierarchy of Courts” be observed? YES.
o Is there a prohibition to directly file the writ before the Supreme Court?
o In case of concurrent jurisdiction of courts, will the exclusionary rule apply?
• Petition for the issuance of a writ of habeas corpus; An application for the writ shall be by a PETITION
(Section 3, Rule 102) filed before the proper court (Section 2, Rule 102).
o What shall the court consider to determine whether or not the petition is sufficient in form and
substance? Formal requirements of the petition; (1) The petition must be signed and verified either
by the party for whose relief it is intended, or by some person on his behalf; (Section 3, Rule 102);
(2) Certificate of non-forum shopping; (3) Payment of docket fees
o Who may file the petition? (1) The party for whose relief it is intended; or (2) By some person on
his behalf (Section 3, Rule 102)
45
o Can it be instituted by the person detained? YES. It can also be filed through a lawyer or
representative.
o Allegations of the petition: (1) That the person in whose behalf the application is made is
imprisoned or restrained on his liberty; (2) The officer or name of the person by whom he is so
imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be
described by an assumed appellation, and the person who is served with the writ shall be deemed
the person intended; (3) The place where he is so imprisoned or restrained, if known; (4) A copy of
the commitment or cause of detention of such person, if it can be procured without impairing the
efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such
fact shall appear. (Section 3, Rule 102)
• It is akin to a subpoena which has the purpose to produce. The writ originated from the concept of
subpoena. However, it is different from the writ because the writ is a high prerogative writ by reason
of its matter of extreme importance. Under Rule 20 of the Rules of Court, it is given priority in the
calendar of cases even the writs of amparo and habeas data.
• The order to produce the body is not equivalent to a grant of the writ of habeas corpus because it is not
a ruling on the propriety of the remedy or on the substantive matters covered by the remedy. The order
to produce is only a preliminary step in the hearing of the petition.
• A PEREMPTORY WRIT OF HABEAS CORPUS is a written document unconditionally commanding

the respondent to have the body of the detained person before the court at a given time and place. This
is different from a WRIT OF PRELIMINARY CITATION which requires the respondent to show cause
and appear why the peremptory writ should not be granted.A peremptory writ is issued when the
detention appears to be patently illegal, and the non-compliance wherewith is punishable.
• PRELIMINARY CITATION – where the person is detained under governmental authority and the
illegality of his detention is not patent from the petition for the writ, the court may issue a citation to
the government officer having the person in his custody to show cause why the writ of habeas corpus
should not issue.
• RETURN – The officer shall make due RETURN of the writ, together with the day and the cause of the
caption and restraint of such person according to the command thereof. (Section 8, Rule 102)
o The return shall be filed within 48 hours (and to produce the body).
o The respondent must PRODUCE THE BODY. Exceptions are (1) infirmity or sickness or (2) when
there is a cause for the detention (when a warrant of arrest has already been issued, there is no
more reason to continue with the proceedings).
RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS

CORPUS IN RELATION TO CUSTODY OF MINORS
A.M. No. 03-04-04-SC, (April 22, 2003)
• Requisites for the valid grant of writ; (1) The petitioner has the right of custody over the minor child;
(2) The rightful custody over the minor is being withheld by the respondent; (3) That it serves the best
interest of the minor child to be in the custody of the petitioner rather than with the respondent.
• A verified PETITION FOR THE RIGHTFUL CUSTODY OF A MINOR may be filed by any person
claiming such right. The party against whom it may be filed shall be designated as the respondent.
(Section 2, A.M. No. 03-04-04-SC)
46
• JURISDICTION AND VENUE – the Family Court of the province or city where the petitioner resides
or where the minor may be found. (Section 3, A.M. No. 03-04-04-SC)
• Authorities raided a bar in Pasay and rescued ten (10) minor girls and arrested five (5) floor
managers. The latter were brought to the NBI detention cell in Manila while the former where
brought to DSWD in Alabang. Five days have already lapsed but there were no charges filed against
them. The parents and pimps filed a joint petition for Habeas Corpus before the RTC of Pasay City.
They pray that the girls and floor managers be released as no information was filed against them. If
you are the judge, will you grant the petition? As to the parents, the petition must fail because the
RTC of Pasay has no jurisdiction to hear the case. Since they were detained in Alabang and that they
are minors, the petition should have been filed before the Family Court of Alabang. As to the floor
managers, the petition must also fail because they should have filed the same before the RTC of Manila.
(Consider also Article 125 of the Revised Penal Code)
• If the petition was filed before the RTC of Pasay and the DOJ subsequently filed an information
for violation of Anti-Trafficking Act against the pimps, what would be the effect of the filing of the
information by the DOJ with the pending petition for habeas corpus? The petition for habeas corpus
shall be dismissed because of the filing of the criminal charge. They may still question the legality of
the detention in the proceedings concerning the criminal charge filed against them.
• Who may file the petition? The petitioner shall be any person claiming the right of the rightful custody
of the minor.
THE RULE ON THE WRIT OF AMPARO

A.M. No. 07-9-12-SC, (September 25, 2007)
• The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act or omission of a public official or
employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced
disappearances or threats thereof. (Section 1, A.M. No. 07-9-12-SC)
• "Entities" refer to artificial persons, as they are also capable of perpetrating the act or omission.
• The writ of amparo originated in Mexico. "Amparo" literally means "protection" in Spanish.
• The writ of amparo 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.
• Since there is no determination of administrative, civil or criminal liability in amparo proceedings,

courts can only go as far as ascertaining responsibility or accountability for the enforced disappearance
or extrajudicial killing.
• What is the difference between the Writ of Amparo and the Writ of Habeas data? The remedy of
Habeas Corpus covers all kinds of illegal detention or the deprivation of the rightful custody of a
person (either adult or minor). In a Writ of Amparo, it covers the right of a person to life, liberty and
security. The latter fills in the inadequacies of the remedy of Habeas Corpus because in Habeas corpus,
it does not cover even a threat against the life, liberty and security of a person. However, all of the three
writs are considered as high prerogative writs.
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• Extralegal killings - killings committed without due process of law, i.e., without legal safeguards or
judicial proceedings.
• Enforced disappearances – (1) That there be an arrest, detention, abduction or any form of deprivation
of liberty; (2) That it be carried out by, or with the authorization, support or acquiescence of, the State
or a political organization; (3) That it be followed by the State or political organization's refusal to
acknowledge or give information on the fate or whereabouts of the person subject of the amparo
petition; and, (4) That the intention for such refusal is to remove subject person from the protection of
the law for a prolonged period of time.
• INTERVENTION OF THE GOVERNMENT - (Navia v. Pardico, G.R. No. 184467, [June 19, 2012], 688
PHIL 266-282) - The petitioner in an amparo case has the burden of proving by substantial evidence
the indispensable element of government participation. Thus, in the absence of an allegation or proof
that the government or its agents had a hand in the disappearance or that they failed to exercise
extraordinary diligence in investigating the case, the Court will definitely not hold the government or
its agents either as responsible or accountable persons.
• A is a Filipino cook employed in a Chinese restaurant located at Macapagal Avenue. A accidentally

broke a precious jar in the said restaurant. His Chinese employer asked A to pay for the jar but A
could not pay the value of the jar because it is very expensive. Because of this, he was not allowed
to go home. B, the wife of A, went to the restaurant to inquire of the whereabouts of his husband
but the Chinese Employer did not allow the wife to enter. The Chinese employer also did not allow
A to go home. A then filed a Writ of Amparo. Will you grant the writ? No. For a writ of amparo to be
granted, it is indispensable that there must be a government intervention. In this case, there is absence
of this element. The correct remedy to availed of by the wife is a petition for habeas corpus.
• What do you think was the basis of the Supreme Court in deciding that the presence of government
intervention is an indispensable requirement given that the rules are silent as to this matter? It can
be inferred from the required allegations in the petition for a writ of amparo regarding “investigation”.
• Is it required that there be actual participation of the government? No. The act may be attributed to
a private person. But even if the person sought to be held accountable or responsible in an amparo
petition is a private individual or entity, still, government involvement in the disappearance remains
an indispensable element. To fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851,
the disappearance must be attended by some governmental involvement. A mere acquiescence on the
part of the government will be enough.
• IT DOES NOT COVER THE ACTION TO OBTAIN CUSTODY OF A MINOR CHILD; In this case,
Christina alleged that the respondent DSWD officers caused her "enforced separation" from Baby Julian
and that their action amounted to an "enforced disappearance" within the context of the Amparo rule.
Contrary to her position, however, the respondent DSWD officers never concealed Baby Julian's
whereabouts. In fact, Christina obtained a copy of the DSWD's May 28, 2010 Memorandum explicitly
stating that Baby Julian was in the custody of the Medina Spouses when she filed her petition before
the RTC. Besides, she even admitted in her petition for review on certiorari that the respondent DSWD
officers presented Baby Julian before the RTC during the hearing held in the afternoon of August 5,
2010. There is therefore, no "enforced disappearance" as used in the context of the Amparo rule as the
third and fourth elements are missing. Christina's directly accusing the respondents of forcibly
separating her from her child and placing the latter up for adoption, supposedly without complying
with the necessary legal requisites to qualify the child for adoption, clearly indicates that she is not
searching for a lost child but asserting her parental authority over the child and contesting custody
over him. Since it is extant from the pleadings filed that what is involved is the issue of child custody
and the exercise of parental rights over a child, who, for all intents and purposes, has been legally
48
considered a ward of the State, the Amparo rule cannot be properly applied. (Caram v. Segui, G.R. No.
193652, [August 5, 2014])
• Prohibited pleadings;
o THE PERIOD TO FILE A RETURN CANNOT BE EXTENDED EXCEPT ON HIGHLY

MERITORIOUS GROUND.
• The writ (even though issued by the RTC) shall be enforceable anywhere in the Philippines. This is
distinguished from a writ issued by the RTC for Habeas Corpus because it shall only be enforceable
around the judicial region.
• Burden of proof and quantum; The parties shall establish their claims by substantial evidence.
o Burden of proof – respondents
o Quantum – Substantial evidence; In cases filed before administrative or quasi-judicial bodies, a

fact may be deemed established if it is supported by substantial evidence, or that amount of
relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
§ Substantial evidence is sufficient in proceedings involving petitions for the writ of amparo. The
respondent must show in the return on the writ of amparo the observance of extraordinary
diligence. Once an enforced disappearance is established by substantial evidence, the relevant
State agencies should be tasked to assiduously investigate and determine the disappearance,
and, if warranted, to bring to the bar of justice whoever may be responsible for the
disappearance. Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. This standard was applied in Secretary of National
Defense v. Manalo, the first ruling by the Court relating to the remedy of the writ of amparo.
(Republic v. Cayanan, G.R. No. 181796, [November 7, 2017])
o Private individual or entity - ordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
o Public official or employee - extraordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
o The respondent public official or employee cannot invoke the presumption that official duty has
been regularly performed to evade responsibility or liability.
o The distinction is made between a private and a public respondent to highlight the difference in
the diligence requirement for a public official or employee. Public officials or employees are
charged with a higher standard of conduct because it is their legal duty to obey the Constitution,
especially its provisions protecting the right to life, liberty and security. The denial of the
presumption that official duty has been regularly performed is in accord with current
jurisprudence on custodial interrogation and search warrant cases.
o Will the Rules on Evidence apply? The same principle as applied to Quasi-Judicial and
Administrative bodies shall apply in the proceeding of a writ of amparo. The Rules on Evidence
shall only apply suppletorily.
• The court shall render within ten (10) days from the time the petition is submitted for decision If the
allegations in the petition are proven by substantial evidence, the court shall GRANT THE PRIVILEGE
49
OF THE WRIT and such reliefs as may be proper and appropriate; otherwise, the privilege shall be
denied.
o The privilege must be distinguished from the writ itself because the former pertains to the
entitlement of the petitioner to the protection of the writ while the latter pertains to the order issued
by the court.
o According to Section 18 of the Rule on the Writ of Amparo, the court hearing the petition may grant
the privilege of the writ of amparo "and such reliefs as may be proper and appropriate." This means
that the amparo court should enable every act or move to prevent any violation of another person's
right to life, liberty and security or to defeat any threat of a violation of such right. (Republic v.
Cayanan, G.R. No. 181796, [November 7, 2017])
• Any party may APPEAL from the final judgment or order to the Supreme Court under Rule 45. The
appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days
from the date of notice of the adverse judgment. The appeal shall be given the same priority as in
habeas corpus cases. (Section 19, A.M. No. 07-9-12-SC)
o Other remedies: (1) Motion for New Trial; (2) Petition for relief from judgment; and (3) Motion for
reconsideration except for interlocutory orders and interim relief orders (see prohibited pleadings)
• Republic v. Cayanan, G.R. No. 181796, [November 7, 2017])
On August 16, 2007, Regina filed a petition for habeas corpus in the RTC alleging that Pablo, her
husband, was being illegally detained by the Director/Head of the CIDG; that a group of armed
men identifying themselves as operatives of the CIDG, led by Pascua, had forcibly arrested Pablo
and had then detained him at the office of the CIDG in Camp Crame, Quezon City; that Pablo had
not been found or heard from since then; and that despite repeated demands by her and her
relatives, the CIDG operatives had not produced the body of Pablo. The CIDG received the petition
for habeas corpus brought in behalf of Pablo which it filed its return on the writ wherein it denied
having the custody of Pablo or having detained him. It prayed for the dismissal of the petition for
habeas corpus. The RTC issued the writ of amparo and the Granting of the Witness Protection
Program availed of by the petitioner retained until the finality of the case/cases. The CIDG
forthwith moved for reconsideration which was denied. Hence, the CIDG has directly appealed to
the Court.
Issues:
(1) Whether there is sufficient evidence supported the grant of the writ of amparo by the RTC; Yes,
Section 17 of the Rule on the Writ of Amparo specifies the degree of proof required from the petitioner
as a respondent named in the petition for the writ of amparo, states that the Burden of Proof and
Standard of Diligence Required. – The parties shall establish their claims by substantial evidence.
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. That the respondent discharge her burden of proof when she provided
substantial evidence to support her petition for the writ of amparo such as the Sinumpaang salaysay
of Perez, Pascual admission that the abduction took place but inserted himself as another victim, and
the presentation of other witnesses of the respondent
(2) Whether the CIDG already discharged its duty as required by the Rule on the Writ of Amparo;
No, the CIDG did not observe the required extraordinary diligence in accordance with section 17 of the
rule of the writ ofAmparo. The CIDG posits that it was only required to observe ordinary diligence in
conducting its investigation of the disappearance of Pablo and in determining Pablo’s whereabouts.
Section 9 of the Rule on the Writ of Amparo expressly states what a public official or employee
50
impleaded as a respondent in the petition for the writ of amparo should submit with the verified
written return. A general denial of the allegations in the petition shall not be allowed. The allegation
that the CIDG had continuously searched for Pablo among its various operating divisions similarly
constituted a general denial because the CIDG did not thereby indicate who had conducted the search,
and how thoroughly the allegedly continuous searches had been conducted.
(3) Whether the petition for the issuance of the writ of amparo was defective; No, The petition for
the writ of amparo was not defective. Section 5 of the Rule on the Writ of Amparo lists the matters to
be alleged in the petition for the writ of amparo. There is no requirement for the petition to state the
probable whereabouts of the victim.
(4) Whether the issuance of the writ of amparo by the RTC impaired Pascua’s right to the
presumption of his innocence. No, The issuance of the writ of amparo did not impair SPO2 Pascua’s
right to the presumption of innocence. The proceedings taken under the Rule on the Writ of Amparo
are not akin or similar to those in criminal prosecutions. In the former, the guilt or innocence of the
respondents is not determined, and no penal sanctions are meted. The proceedings only endeavor to
give the aggrieved parties immediate remedies against imminent or actual threats to life, liberty or
security. The presumption of innocence is never an issue. In the latter, the prosecution of the accused
with due process of law is the object of the proceedings. The presumption of innocence in favor of the
accused is always the starting point. Hence, the need for the State to adduce proof beyond reasonable
doubt of the guilt of the accused.
THE RULE ON THE WRIT OF HABEAS DATA

A.M. NO. 08-1-16-SC (January 22, 2008)
• The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a public official or employee, or of
a private individual or entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party. (Section 1, A.M. No.
08-1-16-SC)
• A police officer goes to the Dean’s office to get a copy of your personal circumstances. Will the
remedy of a writ of habeas data be available to you? Yes. In the event that you may feel that there
may be a violation of the Data Privacy Act, the remedy of a writ of habeas data may be availed of. It is
akin to the commission of an act or omission which entitles you to file a complaint before the court. As
to whether the remedy shall be granted, it shall depend on the allegations of the petition and the
application of the requisites of the remedy. But at this point, the remedy is available to the person.
• Availment of the writ requires the existence of a NEXUS between the right to privacy on the one hand,
and the right to life, liberty or security on the other.
• NOT CONFINED TO EXTRALEGAL KILLINGS AND ENFORCED DISAPPEARANCES; The writ

of habeas data is not only confined to cases of extralegal killings and enforced disappearances. The writ
of habeas data, however, can be availed of as an independent remedy to enforce one's right to privacy,
more specifically the right to informational privacy. The remedies against the violation of such right
can include the updating, rectification, suppression or destruction of the database or information or
files in possession or in control of respondents. Clearly then, the privilege of the Writ of Habeas Data
may also be availed of in cases outside of extralegal killings and enforced disappearances.
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• ENGAGED IN THE GATHERING, COLLECTING OR STORING OF DATA OR INFORMATION;

To be sure, nothing in the Rule would suggest that the habeas data protection shall be available only
against abuses of a person or entity engaged in the business of gathering, storing, and collecting of
data. The individual or entity need not be in the business of collecting or storing data. To "engage" in
something is different from undertaking a business endeavour. To "engage" means "to do or take part
in something." It does not necessarily mean that the activity must be done in pursuit of a business.
What matters is that the person or entity must be gathering, collecting or storing said data or
information about the aggrieved party or his or her family.
• Right to informational privacy — usually defined as the right of individuals to control information
about themselves.
• In sum, there can be no quibbling that the images in question, or to be more precise, the photos of minor
students scantily clad, are personal in nature, likely to affect, if indiscriminately circulated, the
reputation of the minors enrolled in a conservative institution. However, the records are bereft of any
evidence, other than bare assertions that they utilized Facebook's privacy settings to make the
photos visible only to them or to a select few. Without proof that they placed the photographs
subject of this case within the ambit of their protected zone of privacy, they cannot now insist that
they have an expectation of privacy with respect to the photographs in question. Had it been proved
that the access to the pictures posted were limited to the original uploader, through the "Me Only"
privacy setting, or that the user's contact list has been screened to limit access to a select few, through
the "Custom" setting, the result may have been different, for in such instances, the intention to limit
access to the particular post, instead of being broadcasted to the public at large or all the user's friends
en masse, becomes more manifest and palpable. (Vivares v. St. Theresa's College, G.R. No. 202666,
[September 29, 2014], 744 PHIL 451-480)
• Concededly, a bus, a hotel and beach resort, and a shopping mall are all private property whose owners
have every right to exclude anyone from entering. At the same time, however, because these private
premises are accessible to the public, the State, much like the owner, can impose non-intrusive security
measures and filter those going in. The only difference in the imposition of security measures by an
owner and the State is, the former emanates from the attributes of ownership under Article 429 of the
Civil Code, while the latter stems from the exercise of police power for the promotion of public safety.
Necessarily, a person's expectation of privacy is diminished whenever he or she enters private
premises that are accessible to the public. In view of the foregoing, the bus inspection conducted by
Task Force Davao at a military checkpoint constitutes a reasonable search. Bus No. 66 of Davao Metro
Shuttle was a vehicle of public transportation where passengers have a reduced expectation of privacy.
Further, SCAA Buco merely lifted petitioner's bag. This visual and minimally intrusive inspection was
even less than the standard x-ray and physical inspections done at the airport and seaport terminals
where passengers may further be required to open their bags and luggages. Considering the
reasonableness of the bus search, Section 2, Article III of the Constitution finds no application, thereby
precluding the necessity for a warrant. (Saluday v. People, G.R. No. 215305, [April 3, 2018])
THE WRIT OF KALIKASAN

RULE 7 of A.M. No. 09-6-8-SC
April 13, 2010
• The writ is a remedy available to a natural or juridical person, entity authorized by law, people's
organization, non-governmental organization, or any public interest group accredited by or registered
with any government agency, on behalf of persons whose constitutional right to a balanced and
healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public
52
official or employee, or private individual or entity, involving environmental damage of such

magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.
(Sec. 1, Rule 7 of A.M. No. 09-6-8-SC)
• What is the nature of this remedy? It is a SPECIAL CIVIL ACTION
• What is the purpose of this remedy? To provide protection to one’s right to a healthy environment in
connection with Section 16 of Article 2 of the 1987 Constitution.
• While on their way to Metro Manila, the officers of DENR of Sta Cruz, Laguna saw a person selling
an endangered bird. Will the writ of kalikasan be a remedy for this? No. It does not show that there
is an environmental damage of such magnitude as to prejudice two or more cities or provinces. The
proper remefy for the DENR officers who saw the selling of the endangered specie is to file a criminal
complaint for violation of environmental laws.
• Strategic Lawsuit Against Public Participation (SLAPP) refers to an action whether civil, criminal or
administrative, brought against any person, institution or any government agency or local government
unit or its officials and employees, with the intent to harass, vex, exert undue pressure or stifle any
legal recourse that such person, institution or government agency has taken or may take in the
enforcement of environmental laws, protection of the environment or assertion of environmental
rights. It is a defense that may be raised by the institution or the government.
• Environmental Protection Order (EPO) refers to an order issued by the court directing or enjoining
any person or government agency to perform or desist from performing an act in order to protect,
preserve or rehabilitate the environment.
• Issuance of Temporary Environmental Protection Order (TEPO). - If it appears from the verified
complaint with a prayer for the issuance of an Environmental Protection Order (EPO) that the matter
is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive
judge of the multiple-sala court before raffle or the presiding judge of a single-sala court as the case
may be, may issue ex parte a TEPO effective for only seventy-two (72) hours from date of the receipt
of the TEPO by the party or person enjoined. Within said period, the court where the case is assigned,
shall conduct a summary hearing to determine.
• Against whom shall the verified petition be filed? Against public official or employee, or private
individual or entity who commits a violation by an unlawful act or omission, involving environmental
damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more
cities or provinces.
• Where to file the verified petition? The petition shall be filed with the Supreme Court or with any of
the stations of the Court of Appeals. (Sec. 3, Rule 7 of A.M. No. 09-6-8-SC)
• Why cannot you file before the RTC? Because of the requirement that there must be atleast two or
more cities that are affected. Hence, there may be cases wherein the affected cities or provinces are not
within the same judicial region of a RTC.
• The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate
civil (damages), criminal or administrative actions. (Sec. 17, Rule 7 of A.M. No. 09-6-8-SC)
53
THE WRIT OF CONTINNUING MANDAMUS

RULE 8 of A.M. No. 09-6-8-SC
April 13, 2010
• Continuing mandamus is a writ issued by a court in an environmental case directing any agency or
instrumentality of the government or officer thereof to perform an act or series of acts decreed by final
judgment which shall remain effective until judgment is fully satisfied.
RULE 103
CHANGE OF NAME
• PROPER AND REASONABLE CAUSES; Before a person can be authorized to change the name given
him either in his certificate of birth or in the civil registry he must show proper or reasonable cause or
any compelling reason which may justify such change. Otherwise, the request should be denied (Ong
Peng Oan vs. Republic, G.R. No. L-8035, November 29, 1957).
o The following may warrant the grant of petition for change of name:
(1) When the name is ridiculous, tainted with dishonor, or is extremely difficult to write or
pronounce;
(2) When the request for change is a legal consequence of a change of status, such as when a
natural child is acknowledged or legitimized; and
(3) When the change is necessary to avoid confusion (Tolentino, Civil Code of the Philippines, 1953
ed., Vol. I, p. 660);
(4) When one has continuously used and been known since childhood by a Filipino name, and
was unaware of alien parentage; ;
(5) A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith
and without prejudicing anybody; and
(6) When the 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.
RULE 108
CANCELLATION OR CORRECTION OF ENTRIES IN THE
CIVIL REGISTRY
• RULE 103 vs RULE 108
o As to the nature of the proceedings, Rule 103 is adversarial in nature while Rule 108 is, as a general
rule, is summary in nature EXCEPT that it becomes adversarial when the rectification affects civil
status, citizenship or nationality of a party.
o What is the importance of knowing the difference? Because if it is adversarial, there must be
hearing for opposing parties and there must be notices to the solgen. These are all not required if
the proceeding is summary.
54
o As to the grounds, Rule 103 requires “proper and reasonable grounds” while Rule 108 requires
“valid and good reasons”.
• R.A. NO. 9048 embodies the summary procedure while RULE 108 is the appropriate adversary
proceeding.
• X (Chinese national) applied for Naturalization before the RTC (remember that there are three ways
for granting Naturalization; juridical, administrative and legislative). The RTC granted the
application. X filed a motion for reconsideration because the judgment must also include a
CHANGE OF NAME from Chinese to Filipino as a consequence of naturalization. Will you grant
the motion? No. Naturalization does not include the changing of name of the petitioner UNLESS is it
prayed for as a relief under the naturalization application. If there is no prayer, then there must be a
special proceeding for the sole purpose of changing the name.
• X (Japanese national) was married to Y (Filipina but works in Japan) in the Philippines. X filed an
application for divorce in Japan. X met another Filipina and wants to marry but they cannot do it
because according to the records, X is still married to Y. X then filed before the RTC a Petition for
Correction and prayed for the annotation of the divorce decree obtained in Japan. Is the remedy
correct? Yes. The remedy is valid and in the same proceeding, the petitioner may pray for the
recognition of the divorce decree (or foreign judgment) because it is a remedy to establish a fact. What
if what was filed was a Petition for Recognition of a Foreign Judgment? No. According to Section 5,
Rule 2 of the Rules of Court, an ordinary action cannot be joined with a Special Proceeding.
• The case of Republic v. Cagandahan, G.R. No. 166676, [September 12, 2008], 586 PHIL 637-653
In her petition, she alleged that she was born on January 13, 1981 and was registered as a female in the
Certificate of Live Birth but while growing up, she developed secondary male characteristics and was
diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus
afflicted possess both male and female characteristics. She further alleged that she was diagnosed to
have clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was
discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had
minimized, she has stopped growing and she has no breast or menstrual development. She then alleged
that for all interests and appearances as well as in mind and emotion, she has become a male person.
Thus, she prayed that her birth certificate be corrected such that her gender be changed from female to
male and her first name be changed from Jennifer to Jeff.
As for respondent's 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 court's grant of respondent's change of name from Jennifer to
Jeff implies a change of a feminine name to a masculine name. Considering the consequence that
respondent's change of name merely recognizes his preferred gender, we find merit in respondent's
change of name. Such a change will conform with the change of the entry in his birth certificate from
female to male.
• The case of Silverio v. Republic, G.R. No. 174689, [October 19, 2007], 562 PHIL 953-974
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his
first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition,
docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent. Petitioner
alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio
and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes
Silverio" in his certificate of live birth (birth certificate).His sex was registered as "male." He further
alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female"
55
and that he had always identified himself with girls since childhood. 1 Feeling trapped in a man's body,
he consulted several doctors in the United States. He underwent psychological examination, hormone
treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on
January 27, 2001 when he underwent sex reassignment surgery 2 in Bangkok, Thailand. He was
thereafter examined by Dr. Marcelino Reysio-Cruz, Jr.,a plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the
procedure. From then on, petitioner lived as a female and was in fact engaged to be married. He then
sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex
from "male" to "female."
o AS TO THE CHANGING OF NAME; Petitioner's basis in praying for the change of his first name
was his sex reassignment. However, a change of name does not alter one's legal capacity or civil
status. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather
than avoiding confusion, changing petitioner's first name for his declared purpose may only create
grave complications in the civil registry and the public interest. Before a person can legally change
his given name, he must present proper or reasonable cause or any compelling reason justifying
such change. In addition, he must show that he will be prejudiced by the use of his true and
official name. In this case, he failed to show, or even allege, any prejudice that he might suffer as
a result of using his true and official name. In sum, the petition in the trial court in so far as it
prayed for the change of petitioner's first name was not within that court's primary jurisdiction as
the petition should have been filed with the local civil registrar concerned, assuming it could be
legally done. It was an improper remedy because the proper remedy was administrative, that is,
that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the
Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had
no merit since the use of his true and official name does not prejudice him at all. For all these
reasons, the Court of Appeals correctly dismissed petitioner's petition in so far as the change of his
first name was concerned.
o AS TO THE CHANGING OF SEX; While petitioner may have succeeded in altering his body and
appearance through the intervention of modern surgery, no law authorizes the change of entry as
to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the
correction or change of the entries in his birth certificate.(Silverio v. Republic, G.R. No. 174689,
[October 19, 2007], 562 PHIL 953-974)
• In Silverio v. Republic, we held that under R.A. No. 9048, jurisdiction over applications for change of
first name is now primarily lodged with administrative officers. The intent and effect of said 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. The remedy and the
proceedings regulating change of first name are primarily administrative in nature, not judicial. In
Republic v. Cagandahan, we said that under R.A. No. 9048, the correction of clerical or typographical
errors can now be made through administrative proceedings and without the need for a judicial
order. The law removed from the ambit of Rule 108 of the Rules of Court the correction of clerical or
typographical errors. Thus petitioner can avail of this administrative remedy for the correction of his
and his mother's first name. (Onde v. Office of the Local Civil Registrar of Las Piñas City, G.R. No. 197174
(Resolution), [September 10, 2014])
56

AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE
CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN
ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER
WITHOUT NEED OF A JUDICIAL ORDER, AMENDING FOR THIS PURPOSE ARTICLES
376 AND 412 OF THE CIVIL CODE OF THE PHILIPPINES

AN ACT FURTHER AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR
THE CONSUL GENERAL TO CORRECT CLERICAL OR TYPOGRAPHICAL ERRORS IN
THE DAY AND MONTH IN THE DATE OF BIRTH OR SEX OF A PERSON APPEARING
IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER, AMENDING FOR
THIS PURPOSE REPUBLIC ACT NUMBERED NINETY FORTY-EIGHT
• Clerical or typographical errors in entries of the civil register are now to be corrected and changed
without need of a judicial order and by the city or municipal civil registrar or consul general. The
obvious effect is to remove from the ambit of Rule 108 the correction or changing of such errors in
entries of the civil register. Hence, what is left for the scope of operation of Rule 108 are substantial
changes and corrections in entries of the civil register.
• No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or
typographical errors and change of first name or nickname, the day and month in the date of birth or
sex of a person where it is patently clear that there was a clerical or typographical error or mistake in
the entry, which can be corrected or changed by the concerned city or municipal civil registrar or consul
general in accordance with the provisions of this Act and its implementing rules and regulations."
• X wants to change his name on the ground of typographical error (because she used to write M.A.
as part of her name but she discovered that it is really MIA). X filed a petition under Rule 103. Can
X also resort to R.A. 9048? Yes. R.A. 9048 does not take the effectivity of Rule 103. R.A. 9048 is only an
option available to the petitioner.
ABSENTEE
• X married Y. They both lived at Pasay City where they rented a condominium unit. After one week,
X left the rented house. Y then filed a declaration of absence alleging that (1) they were married
where a marriage certificate was appended to the petition; (2) she does not have information as to
the whereabouts of her husband; and that (3) X left no properties and they do not have children. She
then prayed in the petition that her husband he declared as absent. Will the petition prosper? No.
The purpose of this remedy is to administer the properties left by the absentee. If there are properties
left, then the wife is automatically the administrator of the properties. In this case, since there are no
properties left by X, then the remedy is unavailable. This is different from the remedy of declaration of
presumptive death.
• The declaration of presumptive death is FOR ANY PURPOSE. A declaration that a person is absent
is necessary for administration purposes of the properties.
• Declaration of presumptive death; spouse may remarry - the surviving spouse may remarry. Once
there is reappearance after the celebration of the second marriage and there is an affidavit of
57
reappearance, then the second marriage shall be automatically terminated. The children of the second
marriage shall be considered legitimate. If there is no affidavit, then the person shall still be considered
dead and the second marriage shall remaid to be valid.
Rule on Declaration of Absolute Nullity of Void Marriages and

Annulment of Voidable Marriages
A.M. No. 02-11-10-SC, [March 4, 2003]
Rule on Legal Separation, A.M. No. 02-11-11-SC, [March 4, 2003])
• Where to file? The petition shall be filed in the Family Court of the province or city where the petitioner
or the respondent has been residing for at least six months prior to the date of filing, or in the case of a
non-resident respondent, where he may be found in the Philippines, at the election of the petitioner.
• Investigation Report of Public Prosecutor
o Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above,
the public prosecutor shall submit a report to the court stating whether the parties are in collusion
and serve copies thereof on the parties and their respective counsels, if any.
o If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The
parties shall file their respective comments on the finding of collusion within ten days from receipt
of a copy of the report. The court shall set the report for hearing and if convinced that the parties
are in collusion, it shall dismiss the petition.
o If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It
shall be the duty of the public prosecutor to appear for the State at the pre-trial.
• No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over
the subject matter or over the parties; provided, however, that any other ground that might warrant a
dismissal of the case may be raised as an affirmative defense in an answer.
• Answer; The respondent shall file his answer within fifteen days from service of summons, or within
thirty days from the last issue of publication in case of service of summons by publication. The answer
must be verified by the respondent himself and not by counsel or attorney-in-fact.
o If the respondent fails to file an answer, the court shall not declare him or her in default.
o Where no answer is filed or if the answer does not tender an issue, the court shall order the public
prosecutor to investigate whether collusion exists between the parties.
GUIDELINES IN THE CASE OF REPUBLIC VS MOLINA
The following guidelines in the interpretation and application of Art. 36 of the Family Code are hereby
handed down for the guidance of the bench and the bar:
(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be
resolved in favor of the existence and continuation of the marriage and against its dissolution and
58
nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage
and unity of the family. Thus, our Constitution devotes an entire Article on the Family, 11 recognizing
it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it
from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the
state. The Family Code 12 echoes this constitutional edict on marriage and the family and emphasizes
their permanence, inviolability and solidarity.
(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged
in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36
of the Family Code requires that the incapacity must be psychological — not physical, although its
manifestations and/or symptoms may be physical. The evidence must convince the court that the
parties, or one of them, was mentally or psychically ill to such an extent that the person could not have
known the obligations he was assuming, or knowing them, could not have given valid assumption
thereof. Although no example of such incapacity need be given here so as not to limit the application
of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified
as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given
by qualified psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The
evidence must show that the illness was existing when the parties exchanged their "I do's." The
manifestation of the illness need not be perceivable at such time, but the illness itself must have
attached at such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such
incurability may be absolute or even relative only in regard to the other spouse, not necessarily
absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the
assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise
of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses
of children and prescribing medicine to cure them but may not be psychologically capacitated to
procreate, bear and raise his/her own children as an essential obligation of marriage.
(5) Such illness must be grave enough to bring about the disability of the party to assume the essential
obligations of marriage. Thus, "mild characterological peculiarities, mood changes, occasional
emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright
incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a
natal or supervening disabling factor in the person, an adverse integral element in the personality
structure that effectively incapacitates the person from really accepting and thereby complying with
the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as
regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents
and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven
by evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear
that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code
of Canon Law, which became effective in 1983 and which provides:"The following are incapable of
contracting marriage: Those who are unable to assume the essential obligations of marriage due to
causes of psychological nature."
Since the purpose of including such provision in our Family Code is to harmonize our civil laws with
the religious faith of our people, it stands to reason that to achieve such harmonization, great
59
persuasive weight should be given to decisions of such appellate tribunal. Ideally — subject to our law
on evidence — what is decreed as canonically invalid should also be decreed civilly void.
This is one instance where, in view of the evident source and purpose of the Family Code provision,
contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the
Church — while remaining independent, separate and apart from each other — shall walk together in
synodal cadence towards the same goal of protecting and cherishing marriage and the family as the
inviolable base of the nation.
(8) (MODIFIED – CHECK JURISPRUDENCE) The trial court must order the prosecuting attorney or
fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down
unless the Solicitor General issues a certification, which will be quoted in the decision, briefly
stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The
Solicitor General, along with the prosecuting attorney, shall submit to the court such certification
within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The
Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated
under Canon 1095. (Republic v. Court of Appeals and Molina, G.R. No. 108763, [February 13, 1997],
335 PHIL 664-693)
60

SpecPro Part 2 Special Proceedings Judge Wagan

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SPECIAL PROCEEDINGS | Victor Kenner S.

• How is a special proceeding commenced? It is generally commenced by an application; petition or

• SPECIAL PROCEECING VS ORDINARY CIVIL ACTION

ORDINARY CIVIL ACTION SPECIAL PROCEEDING

Non-adversarial in nature (until the case is

• SETTLEMENT OF THE ESTATE OF DECEASED PERSONS; SUBSTANTIVE LAW AND

RULES ON JURISDICTION AND VENUE

o X is a resident of Canada but is a citizen of the Philippines. He was married to Y in Canada. X

MODES OF SETTLING THE ESTATE

A. MODES OF SETTLING THE ESTATE

1. The decedent died intestate (no will);

• FORMS OF EXTRAJUDICIAL SETTLEMENT

3. ORDINARY ACTION OF PARTITION - If they disagree, they may do so in an ordinary action of

• DISTINCTION BETWEEN EXTRAJUDICIAL SETTELEMENT AND SUMMARY SETTLEMENT

EXTRAJUDICIAL SETTLEMENT SUMMARY SETTLEMENT

SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

• SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE; It is a summary proceeding for the

• JURISDICTION – exclusive with the MTC (because of its gross value).

• REMEDIES OF AGGRIVED PARTIES AFTER THE EXTRAJUDICIAL OR SUMMARY

SETTLEMENT OF THE ESTATE

• TESTATE (IF THERE IS A WILL) – PETITION FOR PROBATE

• INTESTATE (IF THERE IS NO WILL) – PETITION FOR THE ISSUANCE OF LETTERS OF

IT COVERS THE FOLLOWING:

• Case of Nuguid vs Nuguid

PROBATE OF WILL; COURT'S AREA OF INQUIRY LIMITED TO EXTRINSIC VALIDITY OF

SUCCESSION; PRETERITION; OMISSION OF NAMES OF FORCED HEIRS. — The deceased

• DUTY OF CUSTODIAN AND THE EXECUTOR; Every time there is a NOTARIAL or

C. FAILURE TO PRODUCE THE WILL

2. PROVING AND ALLOWANCE OF WILL;

1. EXECUTOR named in the will;

• ACQUISITION OF JURISDICTION; It may be acquired through the following:

1. The jurisdictional facts

1. If not executed and attested as required by law;

o LOST OR DESTROYED NOTARIAL OR HOLOGRAPHIC WILL - Section 6 provides for the

If the will is contested, the following rules shall be observed;

• It is possible that there may be TWO OR MORE EXECUTORS.

• AUTHORITY ISSUED BY THE COURT

• REQUIREMENTS FOR AN EXECUTOR:

1. At least eighteen (18) years old;

• INCOMPETENT EXECUTORS OR ADMINISTRATORS

• ORDER OF PREFERENCE FOR THE APPOINTMENT OF A REGULAR ADMINISTRATOR;

5. DUTIES OF THE EXECUTOR OR THE ADMINISTRATOR

7. CLAIMS AGAINST THE ESTATE (SEE THE DISCUSSION BELOW)

8. REVOCATION (SEE DISCUSSION BELOW)

o Order admitting or allowing the will;

o Can you appeal the order of appointment of a special administrator? NO because it is an

• MULTIPLE APPEALS; Hence NOTICE OF APPEAL and RECORD OF APPEAL

• SPECIAL ADMINISTRATOR VS REGULAR ADMINISTRATOR

SPECIAL ADMINISTRATOR REGULAR ADMINISTRATOR

1. PETITION FOR THE APPOINTMENT OF AN ADMINISTRATOR (SECTION 2, RULE 79)

• Where it should be filed? See rules on jurisdiction and venue

• When is an administrator appointed? An administrator is the person appointed by the court to

• What are the contents of the petition?

2. PROCEDURE OF THE APPOINTMENT

1. A petition for letters of administration shall be filed.

• TWO GROUNDS TO CONTEST THE PETITION FOR LETTERS OF ADMINISTRATION:

CLAIMS AGAINST THE ESTATE

o AFTER DEATH - Claims may be allowed as EXPENSES OF ADMINISTRATION and may be

• WHAT ARE THOSE MONEY CLAIMS?

• IMPLIED CONTRACTS – it includes ex lege or quasi-contract, such as for the return of

3. JUDGMENT FOR MONEY AGAINST THE DECENT

POWER TO SELL, MORTGAGE OR ENCUMBER

1. The E or A must have made an application;

• The whole estate may be SME, in the following instances: