REMEDIAL LAW R ULE 72 S UBJECT M AT TER AND A PPLICABILITY OF G ENERAL

Special Proceeding A remedy by which a party seeks to establish a status, a right or a particular fact (Rule 1, Section 3c). SECTION 1. SUBJECT MATTER OF SPECIAL PROCEEDIN S Special proceeding! en"#era$ed in $%e R"le! o& Co"r$ 'J(CRAS)ED(C)A * 1. Judicial approval of voluntary recognition of minor natural children; 2. Change of name; 3. Rescission and revocation of adoption; 4. Adoption; . Settlement of estate of deceased persons; !. )abeas corpus; ". Escheat; #. Declaration of absence and death; $. Cancellation and correction of entries in the civil registry; 1%. )ospitali&ation of insane persons; 11. Adoption; 12. uardianship and custody of children; O$%er Special Proceeding! 'LCR(+A* 1. Li'uidation proceedings; 2. Corporate rehabilitation; 3. Recognition and enforcement of arbitration clause or award; 4. +acation, setting aside, correction or modification of an arbitral award; . Any application with a court for arbitration assistance and supervision. No$e( )he list under *ec. 1, +ule "2 is not e,clusive. Any petition which has for its main purpose the establishment of a status, right or a particular fact may be included as a special proceeding (Festin, Special Proceedings, A Foresight to the Bar Exam !uestion and Ans"er #otes,

SPECIAL PROCEEDINGS
Bar !uestions, $ases, %pdated &a"s and Rules, '(11 ed., p. 1). SECTION ,. APPLICABILIT- OF RULES OF CI+IL ACTIONS -n the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. )he word .practicable/ is defined as( possible to practice or perform; capable of being put into practice, done or accomplished. )his means that in the absence of special provisions, rules in ordinary actions may be applied in special proceedings as much as possible and where doing so would not pose an obstacle to said proceedings. 0owhere in the +ules of 1ourt does it categorically say that rules in ordinary actions are inapplicable or merely suppletory to special proceedings. 2rovisions of the +ules of 1ourt re'uiring certificate of non3forum shopping for complaints and initiatory pleadings, a written e,planation for non3personal service and filing, and the payment of filing fees for money claims against an estate would not in any way obstruct probate proceedings (She)er *. Estate o+ Alice She)er, ,edina, -.R. #o. 1./01', 1ecem2er 13, '((/). 0otwithstanding *ec. 2, +ule "2, intervention as set forth under +ule 1$ does not e,tend to creditors of a decedent whose credit is based on a contingent claim. *ec. 1, +ule 1$ re'uires that an intervenor .has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court , , ,./ 4hile the language of *ec. 1, +ule 1$ does not literally preclude petitioners from intervening in the intestate proceedings, case law has consistently held that the legal interest re'uired of an intervenor .must be actual and material, direct and immediate, and not simply contingent or e,pectant/ (3ilado, et al. *. $ourt o+ Appeals, -.R. #o. 1451(6, ,a7 6, '((0). Ordinar. Ac$ion Special

EXECUTIVE COMMITTEE IAN MICHEL GEONANGA overall chairperson, JOSE ANGELO DAVID chairperson for academics, !"H A#IGAIL ACE O chairperson for ho$el opera$ions, AL#E "O ECALDE, J % vice&chairperson for opera$ions, MA IA CA MELA HA!"EA vice&chairperson for secre$aria$, MA ' EMMAN!EL A#ILO vice& chairperson for finance, (AN LIGGA(! vice& chairperson for elec$ronic da$a processin), JOMA C *HILI* DIMA*ILIS vice&chairperson for lo)is$ics

SUBJECT COMMITTEE CAMILLE SOLA s+,-ec$ chair, EA NI.A OC/EMIA assis$an$ s+,-ec$ chair, A IEL MAGHI ANG edp, VIANNE MA IE GA CIA and /LO(D E ICSON E( civil proced+re, SHEENA MA IE *A#!S"AN special civil ac$ions, CHA MAINE DA"OC special proceedin)s, /IDEL ES"E#AN criminal proced+re, EMMALLAINE LEONILLE LO E"O and * INCESS MA( #!" ON evidence, ED IAN A*A(A special la0s

MEMBERS achelle Ann #aod, Cecille Ca$herine #a+$is$a, Shei)la Nerie David, Charisma Michelle de Jes+s, Norie$ess de los e1es, Nina Claire Esco$o, 1an Mervin /errer, An)el Garma, o,er$ Ja1 Lim, Divina osa Na$ana+an, Haro+n Al& ashid *andapa$an, o)er Arpee *ineda, *ia Mi$2i eceno

San Beda College of Law 2010 Centralized Bar Operations Proceeding 5enerally no definite adverse party because it is directed against the whole world, as ma7ority of special proceedings are in rem. )o establish a right, status or fact. -t is governed by special rules supplemented by ordinary rules. -t is heard by courts of limited 7urisdiction. -nitiated by means of a petition and parties respond by means of an opposition after notice and publication are made. 8aw on pleadings generally not applicable. )he period to appeal is 3% days and aside from a notice of appeal, a record on appeal is re'uired. Special Proceeding +emedy by which a party seeks to establish a status, a right or a particular fact. 5overned by the rules for ordinary civil actions. -nvolves two or more parties. -nitiated complaint. by 9rdinary rules apply primarily but sub7ect to specific rules. -nvolves two or more parties. *ome are initiated by complaint while some are initiated by petition. *ome special civil actions have no cause of action. 5overned by special rules and ordinary rules apply as far as practicable. :ay involve only one party. -nitiated petition. by

Na$"re

5enerally adversarial in nature. )here are definite parties 6 plaintiff vs. defendant. )o protect or enforce a right or prevent or redress a wrong. -t is governed by ordinary rules supplemented by special rules. -t is heard by courts of general 7urisdiction. -nitiated by a pleading and parties respond through an answer after being served with summons. 2arties are generally allowed to file an answer, counterclaim, cross3claim and third3party complaint. )he period to appeal is only 1 days and notice of appeal suffices. Special Ci/il Ac$ion

P"rpo!e

o/erning R"le! Co"r$ 0i$% J"ri!dic$ion

;ased on a cause of action.

0ot based on a cause of action (except 3a2eas $orpus).

)o0 ini$ia$ed

Applica1ili$. o& pleading!

Appeal

Ordinar. Ci/il Ac$ion 9ne by which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong.

1ivil action sub7ect to specific rules.

S"##ar. o& /en"e! and 2"ri!dic$ion &or di&&eren$ Special Proceeding! +en"e J"ri!dic$ion E!$a$e !e$$le#en$ 'R"le! 34(56* 2rovince of decedent<s :)1 6 -f estate<s gross residence at the time of value does not e,ceed death 2h23%%= >2h24%%= in :etro :anila? -f non3resident decedent 6 +)1 6 -f estate<s gross 2rovince where he had value e,ceed :)1<s estate 7urisdiction E!c%ea$ 'R"le 51* -f decedent dies intestate and without heirs 6 2rovince where decedent last resided or where estate is -f reversion 6 2rovince where land lies wholly@partially "ardian!%ip 'R"le 5,* 4here ward resides or Aamily 1ourt 6 -f minor where his property is located ward >if non3resident? +)1 6 -f other than minor ward Tr"!$ee!%ip 'R"le 57* 4here the will was allowed +)1 or where the property affected by the trust is located Adop$ion 'AM No. 6,(8(6,9 RA 76:4* -f domestic 6 where adopter Aamily 1ourt resides -f inter3country 6 where Aamily 1ourt or -nter3 adoptee resides >if filed with 1ountry Adoption ;oard Aamily 1ourt? -f rescission of adoption 6 Aamily 1ourt

San Beda College of Law 2010 Centralized Bar Operations where adoptee resides Habeas Corpus 'R"le 16,* 4here detainee is detained *1 >on any day and at >if filed in +)1? any time, enforceable anywhere in the 2hilippines? *andiganbayan >only in aid of its appellate 7urisdiction? 1A >in instances authori&ed by law, enforceable anywhere in the 2hilippines? +)1 >on any day and at any time, enforceable only within its 7udicial district? Aamily 1ourt >on custody of minors, enforceable within its territorial 7urisdiction, 8Sec. '(, A, #o. (39(59(59S$:? ;ri$ o& Amparo 'AM No. 63(5(1,(SC* 4here the threat or *1, 1A, *andiganbayan, act@commission or any of its +)1 elements occurred ;ri$ o& Habeas Data 'AM No. 7(1(18(SC* 2etitioner<s residence or +)1 where the place the information is gathered@collected@stored, at *1, 1A, *andiganbayan 3 -f the action concerns the petitioner<s option public data files of government offices C%ange o& na#e 'R"le 164* -f 7udicial 3 4here the person +)1 applying for the change of his name resides -f administrative 3 a? 8ocal 8ocal civil registry or civil registry where the record 2hilippine consulate sought to be changed is kept b? 8ocal civil registry of the place of residence of interested party >only if petitioner migrated to another place in the 2hilippines and it would be impractical to file in the place where records sought to be changed are kept? c? 2hilippine consulates >only for 2hilippine citi&ens who reside in foreign countries? Declara$ion o& a1!ence and appoin$#en$ o& $%eir repre!en$a$i/e 'R"le 163* 4here absentee last resided +)1 Cancella$ion<Correc$ion o& en$rie! in $%e ci/il regi!$r. 'R"le 167* -f 7udicial 6 where the +)1 concerned civil registry is located -f administrative 3 8ocal civil registry or a? 8ocal civil registry where 2hilippine 1onsulate the record sought to be changed is kept b? 8ocal civil registry of the place of residence of interested party >only if petitioner migrated to another place in the 2hilippines and it would be impractical to file in the place where records sought to be changed are kept? c? 2hilippine consulates >only for 2hilippine citi&ens who reside in foreign countries? Special Proceeding! "nder /ario"! la0! and SC Circ"lar! a. 2etitions under the Aamily 1ourts Act >R.A. #o. 6340? 1. +ule on Beclaration of Absolute 0ullity of Coid :arriages and Annulment of Coidable :arriages >A.,. #o. ('91191(9S$, ,arch 1., '((3?; 2. +ule on 8egal *eparation >A.,. #o. ('9119119S$, ,arch 1., '((3?; 3. +ule on 2rovisional 9rders >A.,. #o. ('91191'9S$, ,arch 1., '((3?; 4. +ule on 1ustody of :inors and 4rit of 3a2eas $orpus in +elation to 1ustody of :inor 1hildren >A.,. #o. (39(59(5, April '', '((3?; . *ummary of Dudicial 2roceedings under the Aamily 1ode >Arts. '369'.3, #e" $i*il $ode? b. 2roceedings for protection orders under the Ciolence against 4omen and their 1hildren Act >R.A. #o. 0'4'? 1. +ule on Ciolence against 4omen and 1hildren >A.:. 0o. %431%311, 9ctober 1$, 2%%4? c. 2roceedings under the Arbitration 8aw >+.A. 0o. #"!? and Alternative Bispute +esolution Act >+.A. 0o. $2# ? 1. Arbitration; court3anne,ed mediation and 7udicial dispute resolution (A.,. #o. (191(9.9S$9P3;&<A, =cto2er 14, '((1).

S ETTLEMENT OF E ST ATE D ECE AS ED P ERSONS

OF

San Beda College of Law 2010 Centralized Bar Operations

RULES 34(56 Di&&eren$ #ode! o& !e$$le#en$ o& e!$a$e o& a decea!ed per!on<pre!"#ed dead 1. E,tra7udicial *ettlement of Estate (Section 1, Rule /5)> 2. *ummary *ettlement of Estate of *mall Calue (Section ', Rule /5)> 3. 2artition (Rule 40)> 4. 2robate of 4ill (Rule /. to /0)> . 2etition for 8etters of Administration in cases of -ntestacy (Rule /0)> Proced"re in !e$$le#en$ proceeding! 'J"dicial* 2etition for 2robate of will, if any (Rule /.9/4)

SECTION 1. ;)ERE ESTATE OF DECEASED PERSONS SETTLED J"ri!dic$ion= -t depends upon the gross value of the estate of the decedent( 1. -n :etro :anila 6 :)1( gross value does not e,ceed 2h24%%,%%%.%%, otherwise, +)1; 2. 9utside :etro :anila 6 :)1( gross value does not e,ceed 2h23%%, %%%.%%, otherwise, +)1 (Sec. 10(5), Sec. 33(1), B.P. Blg. 1'0). . No$e= Durisdiction over the sub7ect matter is determined by the allegations in the petition; ($adimas *. $arrion, -.R. #o. 16(305, Septem2er '0, '((6)> hence, it is not the actual gross value of the estate, which is the basis of 7urisdiction but the alleged gross value of the estate. +en"e 1. -nhabitant >+esident? of the 2hilippines >whether citi&en or alien? 6 1ourt of the province@city where he resides at the time of death. 2. -nhabitant >+esident? of Aoreign 1ountry 6 1ourt of any province wherein he had his estate (Sec. 1, Rule /3). Re!idence +esidence means his personal, actual or physical habitation, his actual residence or place of abode (Fule *. $ourt o+ Appeals, -.R. #o. &95(.(', #o*em2er '0, 10/4). 4here the proceeding was commenced with a court of improper venue, as where the decedent was neither a resident at the time of his death nor had estate therein, and such ob7ection was seasonably raised in the probate court, the petition should be dismissed and the proceedings should be instituted in the proper court (Euse2io *. Euse2io, et. al,. -.R. #o. &965(0, 1ecem2er '6, 10.4). Re#ed. i& /en"e i! i#properl. laid eneral R"le= 9rdinary appeal not certiorari or prohibition. Exception= -f want of 7urisdiction appears on the record of the case (Sec. 1, Rule /3). )he 7udicial settlement of a decedent<s estate is a proceeding in rem. T0o >ind! o& !e$$le#en$ 1. E?$ra2"dicial !e$$le#en$ 6 a proceeding where the decedent had left no will and no debts, and the heirs

1ourt order fi,ing the time and place for probate.

2ublication of hearing for 3 successive weeks. 0otice shall also be given to the designated@known heirs, legatees and devisees, and the e,ecutor if the one petitioning for allowance of the will is not the testator. -ssuance of 8etters )estamentary@Administration >A special administrator may be appointed? (Rules //96() 2ublication of 0otice for Ailing 1laims Ailing of 1laims (Rule 64) -ssuance of 9rder of 2ayment or *ale of 2roperties 2ayment of 1laims( *ale@:ortgage@Encumbrance of estate properties. Bistribution of remainder, if any >;ut this can be made even before payment if a bond is filed by the heirs?.

V ENUE

R ULE 73 AND P ROCESSES

San Beda College of Law 2010 Centralized Bar Operations ad7udicate the estate among themselves without seeking letters of administration (Sec. 1, Rule /5). 2. J"dicial !e$$le#en$ 6 )estate or intestate proceeding instituted in the country where decedent had his residence at the time of his death or had estate if a nonresident (Sec. ', Rule /5). a. *ummary 7udicial proceedings >if the value of estate is below 2h21%,%%%?; b. +egular settlement proceedings E?$en$ o& 2"ri!dic$ion= 2robate courts are courts of limited 7urisdiction. it may only determine and rule upon issues relating to the settlement of the estate, namely( 'LAD* 1. Li'uidation of the estate; 2. Administration of the estate; and 3. Distribution of the estate (3errera, Special Proceedings and Special Rules ;mplementing the Famil7 $ourts Act o+ 100/, '((. ed., p. 1'). eneral R"le= 2robate court cannot determine issue of ownership. Exceptions= 1. 9wnership may be provisionally determined for the purpose of including property in inventory, without pre7udice to its final determination in a separate action (?da. 1e ?alera, et al., *. ;nserto et al., -.R. #o. .4.(5, ,a7 /,106/)> 2. 4hen all the parties are heirs and they submit the issue of ownership to the probate court provided that the rights of third parties are not pre7udiced (Bernardo *. $ourt o+ Appeals, -.R. #o. &916156, Fe2. '6, 1043)> 3. Fuestion is one of collation or advancement ($oca, et al., *. Pangilinan et al., -.R. #o. &9'/(6', <an. 31, 10/6). )he +)1 acting in its general 7urisdiction is devoid of authority to render ad7udication and resolve the issue of advancement of the real property in favor of an heir since reconveyance and annulment of title with damages is not the proper vehicle to thresh out said 'uestion (#atcher *. $ourt o+ Appeals, -.R. #o. 133(((, =cto2er ', '((1). O$%er @"e!$ion! 0%ic% $%e pro1a$e co"r$ can de$er#ine 1. 4ho the heirs of the decedent are; 2. )he recognition of a natural child; 3. )he validity of disinheritance effected by the testator; 4. *tatus of a woman who claims to be the lawful wife of the decedent; . )he validity of a waiver of hereditary rights; !. )he status of each heir; ". 4hether property in inventory is con7ugal or e,clusive property of deceased spouse; #. :atters incidental or collateral to the settlement and distribution of the estate (Regalado, Remedial &a" $ompendium ?ol. ;;, '((6 ed., p. 13). E?cl"!ionar. R"le eneral R"le= )he court first taking cogni&ance of the settlement of the estate of the decedent shall e,ercise 7urisdiction to the e,clusion of all other courts. )he probate court ac'uires 7urisdiction from the moment the petition for the settlement of estate is filed with said court. -t cannot be divested of such 7urisdiction by the subse'uent acts of the parties as by entering into e,tra7udicial partition of the estate >Sando*al *. Santiago, -.R. #o. &91/'3, ,a7 3(, 1050?; or by filing another petition for settlement in a proper court of concurrent venue (Rodrigue@ *. 1e BorAa, -.R. #o. &9'1003, <une '1, 1044). Exception= Estoppel by 8aches No$e= Durisdiction under +ule "3 *ec. 1 does not relate to 7urisdiction per se but to venue. Gence, institution in a court where the decedent is neither an inhabitant nor had his estate may be the sub7ect of waiver (%riarte *. $F;, -.R. #o. &9'1036930, ,a7 '0, 10/(). SECTION ,. ;)ERE T)E ESTATE SETTLED UPON DISSOLUTION OF MARRIA E Hpon the death of either the husband or the wife, the partnership affairs must be li'uidated in the testate or intestate proceedings of the deceased husband or wife. -f both have died, li'uidation may be made in the testate or intestate proceedings of either (Bernardo, et. al. *. $ourt o+ Appeals, et. al., -.R. #o, &916156, Fe2ruar7 '6, 1043). SECTION 4. PROCESS )he +)1 may issue warrants and processes to compel the attendance of witnesses. ;ri$ o& E?ec"$ion eneral R"le= 2robate court cannot issue writs of e,ecution. Ra$io= -ts orders usually refer to the ad7udication of claims against the estate which the e,ecutor@administrator may satisfy without the need of e,ecutory process (Regalado, p.15). Exceptions= 'CEE* 1. )o satisfy the contributive share of the devisees, legatees and heirs when the latter had entered prior possession over the estate (Sec. 4, Rule 66)>

San Beda College of Law 2010 Centralized Bar Operations 2. )o enforce payment of the e,penses of partition (Sec. 3, Rule 0()> 3. )o satisfy the costs when a person is cited for e,amination in probate proceedings (Sec. 13, Rule 15'). Hnder the rule of inclusio unius est exclusio alterius, these should be the only instances when the probate court can issue writ of e,ecution (?da. 1e ?alera, et al., *. =+ilada, et al., -.R. #o. &9'/.'4, Sept. 1', 10/5). SECTION :. PRESUMPTION OF DEAT) )here is no need for an independent action for Beclaration of 2resumptive Beath for purposes of *uccession. )he returning absentee<s recovery of his estate is sub7ect to the following conditions( 1. All his debts must have been paid; 2. Ge shall recover his property in the condition in which it may be found together with the price of any property that may have been alienated or the property ac'uired therewith; 3. Ge is not entitled to the fruits of the rent (Art. 30', #e" $i*il $ode). Proced"re in e?$ra2"dicial !e$$le#en$ 1. agree#en$ 1e$0een<a#ong %eir! Bivision of estate in public instrument or affidavit of ad7udication )he public instrument or affidavit of ad7udication must be filed with the proper +egistry of Beeds 2ublication of notice of the fact of e,tra7udicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation Ailing of bond e'uivalent to the value of personal property with the proper +egistry of Beeds

R ULE 74 S UMM ARY S ETTLEMENT E STATES

OF

eneral R"le= )he settlement of the estate of the decedent should be 7udicially administered through an administrator or e,ecutor. Exception= )he heirs may resort to( 1. E,tra7udicial settlement of estate (Sec.1)> 2. *ummary settlement of estates of small value (Sec. '). No$e( -n both e,ceptional circumstances, an administrator or e,ecutor need not be appointed.

Re@"i!i$e!= A.S"1!$an$i/e 1. )he decedent left 3 a. 0o will; b. 0o debts. 2. )he heirs are all of age or the minors are represented by their 7udicial or legal representatives duly authori&ed for the purpose. ;. Proced"ral 3% Bivision of estate must be in a public instrument or by affidavit of self3ad7udication in the case of a sole heir; 4% Ailed with proper +egistry of Beeds; 5% 2ublication of notice of the fact of e,tra7udicial settlement once a week for 3 consecutive weeks; 6% Ailing of the bond with the +egister of Beeds e'uivalent to the value of personal property. (Sec. 1, Rule /5). No$e= )he bond is re'uired only when personalty is involved. -f it is a real estate, it shall be sub7ect to a lien in favor of creditors, heirs or other persons for the full period of 2 years from such distribution and such lien cannot be substituted by a bond >Re2ong *. ;2aBe@, -.R. #o. &9 1./6, Septem2er 3(, 105/). )he bond is the value of the personal property certified by the parties under oath and conditioned upon payment of 7ust claims filed under *ec. 4, +ule "4.

SECTION 1. EATRAJUDICIAL SETTLEMENT BA REEMENT BET;EEN )EIRS E?$ra2"dicial Se$$le#en$

San Beda College of Law 2010 Centralized Bar Operations A&&ida/i$ o& Sel& Ad2"dica$ion An affidavit re'uired by *ec 1 of +ule "4 to be e,ecuted by the sole heir of a deceased person in ad7udicating to himself the entire estate left by the decedent. I! a p"1lic in!$r"#en$ nece!!ar. &or $%e /alidi$. o& an e?$ra(2"dicial !e$$le#en$B 0o. A private instrument@document or oral agreement of partition as well as a compromise agreement entered without previous authority of the court is *alid among the heirs "ho participated in the extraAudicial settlement. )he re'uirement under *ec. 1, +ule "4 that it must be in a public instrument is not constitutive of the validity but is merely evidentiary in nature (3ernande@ *. Andal, -.R. #o. &9'/3, ,arch '0, 105/). Hnder the new +ules, it would appear that a public instrument is now re'uired for registration. -f the settlement is in a private instrument, it is believed that the same is still valid and reformation of the instrument may be compelled (Arts. 13.0, et. seC., #e" $i*il $ode). E?$ra2"dicial Se$$le#en$ 0o court intervention. Calue of the estate is immaterial. Allowed only in intestate succession. )here must be no outstanding debts of the estate at the time of settlement. +esorted at the instance and by agreement of all heirs. S"##ar. Se$$le#en$ +e'uires summary 7udicial ad7udication. 5ross estate must not e,ceed 2h21%,%%%. Allowed in both testate and intestate -t is available even if there are debts; it is the court which will make provision for its payment. :ay be instituted by any interested party even by a credit of the estate without the consent of all heirs. No$e= *ection 1, +ule "4 does not preclude the heirs from instituting administration proceedings even if the estate has no debts or obligations, if they do not desire to resort, for good reasons, to an ordinary action for partition (Rodrigue@ *. Dan, -.R. #o. &94(55, #o*em2er '5, 10.'). .5ood reason/ depends on the circumstances of each case (Pereira *. $A, et al., -.R. #o. 6115/, <une '(, 1060). SECTION ,. SUMMAR- SETTLEMENT OF ESTATES OF SMALL +ALUE )he gross value of the estate must not e,ceed 2h21%,%%%. -n accordance with ;.2. ;lg. 12$, the summary settlement of estates of small value is within the 7urisdiction of the :)1s. I#por$an$ Re@"ire#en$!= 1. Application must contain allegation of gross value of estate; 2. Bate for hearing( a. *hall be set by court not less than 1 month nor more than 3 months from date of last publication of notice; b. 9rder of hearing published, once a week for 3 consecutive weeks in a newspaper of general circulation. 3. 0otice shall be served upon such interested persons as the court may direct; 4. ;ond in an amount fi,ed by the court >not value of personal property? conditioned upon payment of 7ust claims under *ec. 4. Proced"re in !"##ar. !e$$le#en$ o& e!$a$e! o& !#all /al"e Application for summary settlement with an allegation that the gross value of the estate does not e,ceed 2h21%,%%%.%% 2ublication of notice of the fact of summary Gearing to be held not for less than 1 month nor in a settlement once a week 3 consecutive weeks more than 3 months from the date of the last newspaper of general circulation >the court may also publication of notice court may direct?as such order notice to be given to other persons court may direct? 1ourt to proceed summarily, without appointing an e,ecutor@administrator, and to make orders as may be necessary, such as( 5rant allowance of the will, if any; Betermine persons entitled to estate; 2ay debts of estate which are due Ailing of the bond fi,ed by the court 7 2artition of the estate

Amount of bond is e'ual to Amount of bond is to be the value of personal determined by the court. property. ;ond is filed with the ;ond is filed with the court. +egister of Beeds. No$e= 4hile the +ules provide that the decedent must not have left any debts, it is sufficient if any debts he may have left have been paid at the time the e,tra7udicial settlement is entered into (-uico *. Bautista, -.R. #o. &9 150'1, 1ecem2er 31, 104(). Di!p"$a1le pre!"#p$ion $%a$ deceden$ le&$ no de1$!= -f no creditor files a petition for letters of administration within 2 years after the death of the decedent it is presumed that the estate left no debts (Sec. 1, Rule /5).

San Beda College of Law 2010 Centralized Bar Operations was never intended to deprive heirs of their lawful participation in the estate (Benatiro *. 3eirs o+ $u7os, -.R. #o. 141''(, <ul7 '6, '((6). No$e= )he other heirs are also not bound by the e,tra7udicial settlement should the Beed of E,tra7udicial 2artition or Affidavit of *elf3Ad7udication be false (Sec. 5 in relation to Sec. 1). Re#edie! o& $%e Aggrie/ed Par$ie! a&$er Se$$le#en$ o& $%e E!$a$e 1. ;i$%in , .ear! 3 claim against the bond or the real estate or both (Sec.5, Rule /5)> 2. Re!ci!!ion in case of preterition of compulsory heir in partition tainted with bad faith (Article 11(5, #$$)> 3. Recon/e.ance of real property; 4. Action to ann"l a deed of e,tra7udicial settlement on the ground of fraud which should be filed within 4 years from the discovery of fraud; . Pe$i$ion &or Relie& on the ground of FAME 6 &raud, accident, #istake, e,cusable negligence 6 !% days after the petitioner learns of the 7udgment, final order or other proceeding to be set aside, and not more than ! months after such 7udgment or final order was entered (Rule 36)> !. +eopening by In$er/en$ion within anytime before rendition of 7udgment, as long as it is within the reglementary period of 2 years; ". 0ew action to ann"l settlement within reglementary period of 2 years. An heir deprived of his share may file an action for reconveyance based on an implied or constructive trust which prescribes 1% years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith (,arCue@ *. $ourt o+ Appeals, -.R. #o. 1'./1., 1ecem2er '0, 1006). 4here the estate has been summarily settled, the unpaid creditor may, 0i$%in , .ear!, file a motion in court wherein such summary settlement was had, for the payment of his credit. After the lapse of 2 years, an ordinary action may be instituted against the distributees within the statute of limitations but not against the bond. )he 23year lien upon the real property distributed by e,tra7udicial or summary settlement shall be annotated on the title issued to the distributees and after 2 years will be cancelled by the register of deeds without need of court order (&and Registration $ommission $ircular 153 dated <anuar7 '6, 1045).

SECTION 4. BOND TO BE FILED B- DISTRIBUTEES )he amount of bond re'uired under a summary settlement is determined by the court, unlike in an extraAudicial settlement where the amount is e'ual to the value of the personal property as established by the instrument of ad7udication (Regalado, p. '1). SECTION :. LIABILIT- OF DISTRIBUTEES AND ESTATE ;%en !e$$le#en$ o& e!$a$e! in $%e co"r$! #a. 1e co#pelled= 1. -f there is an undue deprivation of lawful participation in the estate; 2. )he e,istence of debts against the estate; or 3. -f there is an undue deprivation of lawful participation payable in money. No$e= )he bar against distributees from ob7ecting to an e,tra7udicial partition after the e,piration of two years is applicable only( a. )o persons who have participated or taken part or had notice of the e,tra7udicial partition, and b. 4hen all the persons or heirs of the decedent have taken part in the e,tra7udicial settlement (Sampio *. $ourt o+ Appeals, -.R. #o. &91(5/5, Fe2ruar7 '6, 10.6). I! a per!on 0%o %ad no >no0ledge or %ad no$ par$icipa$ed in $%e e?$ra2"dicial !e$$le#en$ 1o"nd $%ere1. 1. rea!on o& con!$r"c$i/e no$ice o& p"1lica$ionB 0o. E,tra7udicial settlement under *ec. 1 of +ule "4 is an ex parte proceeding, and the rule plainly states that persons who do not participate or had no notice of an e,tra7udicial settlement will not be bound thereby, and contemplates a notice that has been sent out or issued before any deed of settlement or partition is agreed upon, and not after such agreement has already been e,ecuted. )he publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part because the same was notice after the fact of e,ecution. )he re'uirement of publication is geared for the protection of creditors and

San Beda College of Law 2010 Centralized Bar Operations *uch lien cannot be discharged nor the annotation be cancelled within the 2 year period even if the distributees offer to post a bond to answer for contingent claims from which lien is established >Re2ong *. ;2aBe@, -.R. #o. &9 1./6, Septem2er 3(, 105/). SECTION C. PERIOD FOR CLAIM OF MINOR OR INCAPACITATED PERSON -f on the date of the e,piration of the two3year period, the creditor or heir is( 1. A minor; or 2. -ncapacitated; or 3. -n prison; or 4. 9utside the 2hilippines. Ge may present his claim within one year after such disability is removed (Sec. . Rule /.). )he e,ecutor, within 2% days after he knows of the testator<s death or after he knows that he is named an e,ecutor if he knows it after the testator<s death, shall( 1. 2resent the will to the court >unless it has reached the court in any other manner?; and 2. *ignify in writing his acceptance or refusal of the trust. SECTION :. CUSTODIAN AND EAECUTOR SUBJECT TO FINE FOR NE LECT A fine not e,ceeding 2h22,%%%. SECTION C. PERSON RETAININ COMMITTED ;ILL MA- BE

R ULE 75 P RODUCTION OF W ILL A LLOWANCE OF W ILL N ECESS ARY

SECTION 1. ALLO;ANCE CONCLUSI+E AS TO EAECUTION NECESSAR-.

Pro1a$e )he act of proving in a court a document purporting to be the last will and testament of a deceased person in order that it may be officially recogni&ed, registered and its provisions carried out insofar as they are in accordance with the law >also re+erred to as allowance of the will) (<urado, $omments and <urisprudence on Succession, '((0, 0th Edition, p. 135).

Na$"re o& pro1a$e proceeding! 1. In Re#= binding on the whole world (Regalado, p. 31). 2. Manda$or.= no will shall pass either real or personal property unless it is proved and allowed in the proper court (Sec. 1, Rule /.). Gowever, a will may be sustained on the basis of Article 1%#% of the 1ivil 1ode which states that( .-f the testator should make a partition of his properties by an act inter *i*os, or by will, such partition shall stand in so far as it does not pre7udice the legitime of the forced heir/ (,ang9=7 *. $ourt o+ Appeals, -.R. #o. &9'/5'1, Septem2er 1', 1064). 3. I#pre!crip$i1le 6 because of the public policy to obey the will of the testator. 4. T%e doc$rine o& e!$oppel doe! no$ appl.. )he presentation and probate of the will is re'uired by public policy. -t involves public interest (Fernande@ *. 1imagi2a, -.R. #o. &9'3436, =cto2er 1', 104/). SECTION ,. CUSTODIAN OF ;ILL TO DELI+ER )he custodian must deliver the will to the court or to the e,ecutor within 2% days after he learns of the death of the testator. SECTION 4. EAECUTOR TO PRESENT ;ILL AND ACCEPT OR REFUSE TRUST

R ULE 76 A LLOWANCE OR D ISALLOW ANCE OF W ILL

SECTION 1. ;)O MA- PETITION FOR T)E ALLO;ANCE OF ;ILL 1. E,ecutor; 2. Bevisee or legatee named in the will; 3. 2erson interested in the estate >e.g. heirs?; An in$ere!$ed par$. is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor >Sumilang *. Ramagosa, -.R. #o. &9'313., 1ecem2er '4, 104/). 4. )estator himself during his lifetime; . Any creditor 3 as preparatory step for filing of his claim therein (Regalado, p.3(). ;%o #a. 1e a par$. in pro1a$eB -n general, any person having a direct and material interest in the will or estate (Drillana *. $risostomo, -.R. #o. &933/6, August '', 10.1). SECTION ,. CONTENTS OF PETITION 1. )he 7urisdictional facts 6 death of the testator and his residence at the time of death or the province where estate was left by the decedent who is a non3resident; 2. )he names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;

San Beda College of Law 2010 Centralized Bar Operations 3. )he probable value and character of the property of the estate; 4. )he name of the person for whom letters are prayed; and . )he name of the person having custody of the will if it has not been delivered to the court. ;ut no defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will anne,ed. E&&ec$ o& $%e pro1a$e o& a 0ill= -t is conclusive as to the e,ecution and validity of the will >even against the *tate?. )hus, a criminal case against the forger may not lie after the will has been probated (<urado, p. 155). Ma. Sec. 19 R"le 38 1e 0ai/ed !ince i$ i! 2"!$ a proced"ral re@"ire#en$B 0o because the same re'uirement is embodied in Art. #3# of the 1ivil 1ode, which is a substantive law. I!!"e in $%e pro1a$e o& a 0ill eneral R"le= 9nly determination of the e,trinsic validity not the intrinsic validity or validity of testamentary dispositions. Exceptions= Principle o& prac$ical con!idera$ion! 1. )he waste of time, effort, e,pense plus added an,iety are the practical considerations that induced the *1 to a belief that we might as well meet head3on the issues of the validity of the provisions of the will in 'uestion >#uguid *. #uguid, -.R. #o. &9'355., <une '3, 1044). 2. 4here the entire or all testamentary dispositions are void and where the defect is apparent on its face (Acain *. ;ntermediate Appellate $ourt, -.R. #o. /'/(4, =cto2er '/, 106/> #epumuceno *. $ourt o+ Appeals, -.R. #o. &94'0.', =cto2er 0, 106.). E?$rin!ic +alidi$. :eans due e,ecution of the will. Meaning o& d"e e?ec"$ion 'FM(+PS* 1. )hat the will was e,ecuted strictly in accordance with the &ormalities re'uired by law; 2. )hat the testator was of sound and disposing #ind when he e,ecuted the will; 3. )hat there was no /itiation of consent through duress, fear or threats; 4. )hat it was not procured by undue or improper pressure or influence on the part of the beneficiary, or some other person for his benefit; . )hat the !ignature of the testator is genuine, i.e., it was not procured through fraud and that the testator intended that what he e,ecuted was his last will and testament (Art. 630, #e" $i*il $ode). SECTION 4. COURT TO APPOINT TIME FOR PRO+IN ;ILLD NOTICE T)EREOF TO BE PUBLIS)ED )he probate of a will is a proceeding in rem and the pu2lication provided for by this +ule is a Aurisdictional reCuirement. )he personal service of notice upon the heirs is a matter of procedural con*enience and not a 7urisdictional re'uisite. (Regalado, p. 31) -f the petition for probate is on the testator<s own initiative during his lifetime (Ante ,ortem)( 3% 0o publication is necessary (Sec. 3); and 4% 0otice shall be made only to the compulsory heirs (Sec. 5). No$e= )hree >3? weeks successively is not strictly 21 days. -t is sufficient that publication has been made once a week successively three times, even if less than twenty3 one days intervened between the first and last publication (Basa *. ,ercado, -.R. #o. &95'''4, <ul7 '4, 103.). SECTION :. )EIRS9 DE+ISEES9 LE ATEES9 AND EAECUTORS TO BE NOTIFIED B- MAIL OR PERSONALLPer!on! $o 1e i/en No$ice= 1. Besignated or known heirs, legatees and devisees; and 2. E,ecutor and co3e,ecutor if not the petitioner. Mode! o& No$i&ica$ion 1. I& 1. #ail= 2% days before hearing 2. I& $%ro"g% per!onal !er/ice= 1% days before hearing. SECTION C. PROOF AT )EARIN . ;)AT SUFFICIENT IN ABSENCE OF CONTEST At the hearing, compliance of pu2lication and notice must first be shown before introduction of testimony in support of the will. E/idence re@"ired in !"ppor$ o& a 0ill 1. Uncon$e!$ed ;ill a. No$arial ;ill!= )estimony of at least one of the subscribing witnesses may be allowed, if such witness testifies that the will was e,ecuted as is re'uired by law (Sec..). i. -f all subscribing witnesses reside outside the province 6 deposition is allowed (Sec./). ii. -f the subscribing witnesses are dead, insane, or none of them resides in the 2hilippines 6 )he court may admit testimony of other witnesses to prove the sanity of the testator, and the due e,ecution of the will, and as evidence of the

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San Beda College of Law 2010 Centralized Bar Operations e,ecution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses or of any of them (Sec. 6). b. )olograp%ic ;ill!= the testimony of one witness who knows the handwriting and signature of the testator. -n the absence thereof and if the court deem it necessary, e,pert testimony may be resorted to. -n case of a holographic will, it is not mandatory that witnesses be first presented before e,pert testimony may be resorted to, unlike notarial wills wherein the attesting witnesses must first be presented or accounted for (A@aola *. Singson, -.R. #o. &915((3, August ., 104(). )his is so because holographic wills are not re'uired to be witnessed and the e,istence of a 'ualified witness may be beyond the control or knowledge of the proponent of the will (Regalado, p. 3.). ,. Con$e!$ed ;ill a. No$arial ;ill!= All subscribing witnesses and the notary public before whom the will was acknowledged must be produced and e,amined (Sec. 11). Gowever, if any or all the witnesses >i? testify against the e,ecution of the will, >ii? do not remember attesting thereto, or >iii? are of doubtful credibility, the will ma7 2e allo"ed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was e,ecuted and attested in the manner re'uired by law (An instance "here a part7 ma7 impeach his o"n "itness). b. )olograp%ic ;ill!= 3 witnesses who know the handwriting of testator. -n the absence thereof and if the court deem it necessary, testimony of an e,pert witness may be resorted to. Gowever, in $odo7 *. $aluga7 (-.R. #o. 1'3564, Aug. 1', 1000), the *1 ruled that if the holographic will is contested, 3 witnesses who know the handwriting and signature of the testator are now re'uired@mandatory to prove its authenticity and for its allowance. eneral R"le= A holographic will if destroyed cannot be probated. Exception= -f there e,ists a 2hotostatic or Iero, copy thereof (-an *. Eap, -.R. #o. &91'10(, August 3(, 10.6). No$e= -n 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 >Fernande@ *. Dantoco, -.R. #o. '.560, Septem2er 6, 10'4). )his is an e,ception 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 duty3 bound to account for all attesting witnesses. -t 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 e,ecution of the will (Ramos, et. al. *. $ourt o+ Appeals, et. al. -.R. #o. &9 5(6(5, <anuar7 31, 10/6). SECTION 8. PROOF OF LOST OR DESTRO-ED ;ILL. CERTIFICATE T)EREUPON )his section applies to a lost or destroyed notarial will and not to a holographic will. Fac$! 0%ic% !%o"ld 1e pro/ed in order $%a$ a lo!$ or de!$ro.ed 0ill #a. 1e allo0ed= 1. )hat the will has been duly e,ecuted by the testator; 2. )hat the will was in e,istence when the testator died, or if it was not, that it has been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and 3. )he provisions of the will are clearly established by at least two credible witnesses. SECTION 3. PROOF ;)EN ;ITNESSES DO NOT RESIDE IN PRO+INCE SECTION 7. PROOF ;)EN ;ITNESSES DEAD OR INSANE OR DO NOT RESIDE IN T)E P)ILIPPINES SECTION 5. ROUNDS FOR DISALLO;IN ;ILL ro"nd! pro/ided &or are e?cl"!i/e= 'FIDUS* 1. -f not e,ecuted and attested as re'uired by law; (&ormalities) 2. -f the testator was insane, or otherwise mentally incapable to make a will, at the time of its e,ecution; 3. -f it was e,ecuted under duress, or the influence of fear, or threats; 4. -f it was procured by "ndue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; . -f the !ignature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fi,ing his signature thereto. S"1!$an$ial Co#pliance R"le -f the will has been e,ecuted in substantial compliance with the formalities of the law, and the possibility of bad

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San Beda College of Law 2010 Centralized Bar Operations faith and fraud is obviated, said will should be admitted to probate (Art. 6(0, #$$). *eparate wills which contain essentially the same provisions and pertain to properties which in all probability are con7ugal in nature, practical considerations dictate their 7oint probate (?da. 1e Pere@ *. Dolete, -.R. #o. /4/15, <une ', 1005). Separa$e ;ill! pro1a$ed 2oin$l. in /ie0 o& !i#"l$aneo"! dea$%! o& $%e !po"!e! $e!$a$or!= A literal application o+ the rules should 2e a*oided i+ the7 "ould onl7 result in the dela7 in the administration o+ Austice. 4hat the law e,pressly prohibits is the making of 7oint wills either for testators reciprocal benefit or of 3rd person. 4ills of the decedent spouse are essentially similar in disposition and property; 7oint probate was allowed >Acain *. ;A$, -.R. #o. /'/(4, =cto2er '/,106/). La0 go/erning &or#! o& 0ill!= )he law in force at the time of the e,ecution of a will (Art. /0., #$$). SECTION 16. CONTESTANT TO FILE CONTEST ROUNDS OF SECTION 1= ;ILL PRO+ED OUTSIDE T)E P)ILIPPINES MA- BE PRO+ED )ERE. -t is a re'uirement that a will which was probated in a foreign country be re3probated in the 2hilippines. -f the decedent owns properties in different countries, separate proceedings must be had to cover the same. SECTION ,= NOTICE OF )EARIN FOR ALLO;ANCE. ;%a$ !%o"ld 1e &iled= 2etition for allowance accompanied with( 1. Authenticated copy of the will 2. Authenticated decree of the allowance thereof. )he court will then fi, a time and place for hearing and cause notice thereof to be given. 4ith regard to notices, the will probated abroad should be treated as if it were an original will or a will presented for probate for the first time. Accordingly, compliance with *ections 3 and 4 of +ule "!, which re'uire publication and notice by mail or personally to the known heirs, legatees, and devisees of the testator resident in the 2hilippines and to the e,ecutor, if he is not the petitioner, are re'uired (Salud Deodoro ?da. 1e Pere@ *. 3on. Fotico A. Dolete, -.R. #o. /4/15, <une ', 1005). Ma$$er! $o 1e pro/en d"ring a re(pro1a$e proceeding= 1. )hat the testator was domiciled in a foreign country; 2. )hat the will has been admitted to probate in such country; 3. )hat the foreign court was, under the laws of said foreign country, a probate court with 7urisdiction over the proceedings; 4. )he law on probate procedure in said foreign country proof of compliance therewith; and . )he legal re'uirements in said foreign country for the valid e,ecution of the will (1e Pere@ *. Dolete, supra). E&&ec$! o& $%e allo0ance o& a 0ill "nder Rule 77: 1. )he will shall be treated as if originally proved and allowed in 2hilippine courts; 2. 8etters testamentary or administration with a will anne,ed shall e,tend to all estates in the 2hilippines; 3. After payment of 7ust debts and e,penses of administration, the residue of the estate shall be disposed of as provided by law in cases of estates in the 2hilippines belonging to persons who are inhabitants of another state or country. No$e= -n the absence of proof of the foreign law, it is presumed that it is the same as that in the 2hilippines (1octrine o+ Processual Presumption).

Con$e!$an$ #"!$= 1. *tate in writing his grounds for opposing the allowance of the will; and 2. *erve a copy thereof to petitioner and other interested parties. SECTION 11. SUBSCRIBIN ;ITNESSES PRODUCED OR ACCOUNTED FOR ;)ERE ;ILL CONTESTED SECTION 1,. PROOF ;)ERE TESTATOR PETITIONS FOR ALLO;ANCE OF )OLO RAP)IC ;ILL -f there is no contest, the fact that the testator affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of the genuineness and due e,ecution thereof. -n case of contest, the burden of proof is on the contestant. SECTION 14. CERTIFICATE OF ALLO;ANCE ATTAC)ED TO PRO+ED ;ILL. TO BE RECORDED IN T)E OFFICE OF RE ISTER OF DEEDS. 9rder for probate is final. )hus, it is appealable.

R ULE 77 A LLOWANCE OF W ILL PROVED O UTSIDE OF P HILIPPINES AND A DM INISTRAT ION OF E STATE T HEREUNDER
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San Beda College of Law 2010 Centralized Bar Operations )he venue for the petition for re3probate is the same as that provided for in Rule /3. A will of a foreigner e,ecuted abroad can be probated in the 2hilippines without need of being probated abroad. Art. #1! of the 1ivil 1ode states that the will of an alien who is abroad produces effect in the 2hilippines if made in accordance with the formalities prescribed by the law of the place where he resides, or according to the formalities observed in his country. +eprobate of a will already probated and allowed in a foreign country is different from that probate where the will is presented for the first time before a competent court. +eprobate is specifically governed by +ule "". -n reprobate, the local court acknowledges as binding the findings of the foreign probate court provided its 7urisdiction over the matter can be established. -f the instituted heirs do not have the means to go abroad for the probate of the will, it is as good as depriving them outright of their inheritance (;n Re Palaganas, -.R. #o. 140115, '4 <anuar7 '(11). e,cessive, inveterate and continued use of into,icants, to such an e,tent as to render the sub7ect of the habit as unsafe against to entrust with the care of property or the transaction of business (3errera, p. /6). b. I#pro/idence 6 means the want of care and foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe and liable to be lost or diminished in value (Blac)Hs &a" 1ictionar7, .th ed., p.46'). c. ;an$ o& "nder!$anding 6 amounts to lack of intelligence such as would or might sub7ect one to sinister influence or coercion against the general interest of the estate (3errera, p.6(). d. ;an$ o& in$egri$. 6 integrity is synonymous to probity, honesty and uprightness in business relations with others. )he accusation should be certain and grave in its nature (3errera, p.6(). e. Con/ic$ion &or an o&&en!e in/ol/ing #oral $"rpi$"de 6 an act of baseness, vileness or depravity in the private and social duties which a man owes his fellow men, to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to 7ustice, honesty, modesty or good morals (Fari *. Flores, A.,. #o. ('1/(9,$) P913.4 #o*em2er '1, 10/0). 4. )he e,ecutor of an e,ecutor cannot administer the estate of the first testator (Sec. '). E?ec"$or and Ad#ini!$ra$orD Di!$ing"i!%ed E?ec"$or Ad#ini!$ra$or Appointed by the court in case the testator did not appoint an e,ecutor or if the e,ecutor refused 0ominated by the testator appointment >administrator and appointed by court. with a will anne,ed? or if the will was disallowed or if a person did not make a will >intestate succession?. :ust present will to the court within 2% days after he knows of the death of testator or after he knew that he was appointed as e,ecutor >if he obtained 0o such duty. such knowledge after death of testator?, unless the will has reached the court in any manner.

R ULE 78 L ETTERS T ESTAM ENT ARY AND OF A DM INISTRAT ION WHEN AND TO WHOM I SSUED
;%o can ad#ini!$er $%e e!$a$eB 1. E?ec"$or 6 the one named by the testator in his will for the administration of his property after his death. 2. Ad#ini!$ra$or9 reg"lar or !pecial 6 the one appointed by the 1ourt in accordance with the +ules or governing statutes to administer and settle the intestate estate (Rule 6(). 3. Ad#ini!$ra$or 0i$% a 0ill anne?ed G the one appointed by the court in cases when, although there is a will, the will does not appoint any e,ecutor, or if appointed, said person is either incapacitated or unwilling to serve as such (Rule /0, Section 1). ;%o #a. !er/e a! an e?ec"$or or ad#ini!$ra$orB Any competent person may serve as e,ecutor or administrator. SECTION 1. ;)O ARE INCOMPETENT TO SER+E AS EAECUTORS OR ADMINISTRATORS 1. A minor; 2. A non3resident; 3. 9ne who in the opinion of the court is unfit to e,ercise the duties of the trust by reason of( a. Dr"n>enne!! 6 when the habits of drink are carried so far as to cloud the brain and weaken their respect for honesty and integrity; )he drunkenness contemplated by this statute, undoubtedly, is that

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San Beda College of Law 2010 Centralized Bar Operations E?ec"$or )estator may provide that he may serve without a bond >but court may direct him to give a bond conditioned only to pay debts?. 1ompensation may be provided for by the testator in the will, otherwise Sec. /, Rule 6. will be followed. Ad#ini!$ra$or +e'uired unless e,empted by law )hose persons who are entitled by law to receive the decedent<s property (Regalado, p. 54). 2. -f the surviving spouse or the ne,t of kin or the person selected by them be incompetent or unwilling to serve, or if the surviving spouse or ne,t of kin neglects for 3% days after the death of the decedent to apply for administration by them or their nominee, any one or more of the principal creditors, if competent and willing to serve; Gowever, neglect of such persons to apply for letters administration for 3% days after death is not sufficient to e,clude the widow from the administration of the estate of her husband. )here must be a very strong case to 7ustify the e,clusion of the widow from the administration (3errera, p. 65). 3. -f there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select >stranger?. No$e= As a general r"le, the court cannot set aside the order of preference under Sec. 4 Rule /6. Exception= -n case the persons who have the preferential right to be appointed under the rule are not competent or are unwilling to serve, administration or they neglect to apply for letters of administration for 3% days after the decedent<s death, the letters may be granted to such other person as the court may appoint. )he order of appointment of regular administrator is final and appealable. Ba!i! &or $%e pre&eren$ial rig%$= )he underlying assumption is that those who will reap the benefits of a wise, speedy and economical administration of the estate or on the other hand, suffer the conse'uences of waste, improvidence or mismanagement, have the higher interest and most influential motive to administer the estate correctly (-on@ales *. Aguinaldo, -.R. #o. /5/40 Septem2er '6, 100(). No$e= 1o3administrators may be appointed for the benefit of the estate and those interested therein >,atute *. $ourt o+ Appeals, -.R. #o. '4/.1, <anuar7 31, 1040). Scope or li#i$! o& ad#ini!$ra$ion= )he general rule is that administration e,tends only to the assets of a decedent found within the state or country where it was granted, so that an administrator appointed in one state or country has no power over the property in another state or country (&eon *. ,anu+acturers &i+e ;nsurance $o., -.R. #o. &934//, #o*em2er '0, 10.1).

1ompensation is governed by Sec. /, Rule 6..

SECTION ,. EAECUTOR OF EAECUTOR NOT TO ADMINISTER ESTATE SECTION 4. MARRIED ;OMEN MA- SER+E SECTION :. LETTERS TESTAMENTAR- ISSUED ;)EN ;ILL ALLO;ED Te!$a#en$ar. Pri/ilege )he right given by law to a person to dispose of his property when he dies. Le$$er! Te!$a#en$ar. An authority issued to an e,ecutor named in the will to administer the estate (Festin, p. 54). Le$$er! o& Ad#ini!$ra$ion An authority issued by the court to a competent person to administer the estate of the deceased who died intestate (Festin, p. 54). Le$$er! o& Ad#ini!$ra$ion 0i$% a ;ill Anne?ed An authority issued by the court to a competent person to administer the estate of the deceased if the e,ecutor named in the will refused to accept the office or if the person name is incompetent. SECTION C. ;)ERE SOME CO(EAECUTORS DISEUALIFIED9 OT)ERS MA- ACT SECTION 8. ;)EN AND TO ;)OM LETTERS OF ADMINISTRATION RANTED Order o& pre&erence in gran$ing le$$er! o& ad#ini!$ra$ion 1. )he surviving husband or wife or the ne,t of kin, or both in the discretion of the court, or to such person as such surviving spouse or ne,t of kin, re'uests to have appointed, if competent and willing to serve >surviving spouse or ne,t of kin or their nominee?; Ne?$ o& Fin

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San Beda College of Law 2010 Centralized Bar Operations No$e= A party indebted to the decedent<s estate cannot compatibly perform the duties of an administrator and should not be appointed as such (&im *. 1ia@9,illare@, -.R. #o. &91/433, =cto2er 10, 1044). 4here such fact of indebtedness was only subse'uently discovered after the administrator had been duly appointed, he should not be removed, absent any other lawful ground (1alisa7, etc. *. $onsolacion, etc., -.R. #o. &955/(', <ul7 3(, 10/0). believed to have an interest in the estate of the deceased person, the proceeding for the settlement of the estate is void and should be annulled >Euse2io *. ?almores, -.R. #o. &9/(10, ,a7 31, 10..). SECTION :. OPPOSITION ADMINISTRATION TO PETITION FOR

R ULE 7! O PPOSING I SSUANCE OF L ETTERS T EST AM ENT ARY P ETITION AND C ONTEST FOR L ETTERS OF A DM INISTRAT ION
SECTION 1. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTAR-. SIMULTANEOUS PETITION FOR ADMINISTRATION )he main issue is the determination of the person who is rightfully entitled to administration. Per!on! $o oppo!e $%e i!!"ance o& le$$er!= Any person interested in the will. -n order to be a party, a person must have material and direct, and not one that is only indirect or contingent, interest (Saguinsun *. &inda7ag, -.R. #o. &91//.0, 1ecem2er 1/, 104'). )he opposition may be accompanied by a 2etition for the issuance of 8etters of Administration with the will anne,ed. SECTION ,. CONTENTS OF A PETITION FOR LETTERS OF ADMINISTRATION 1. )he 7urisdictional facts; 2. )he names, ages, residences of heirs and the names and ages of the creditors; 3. )he probable value and character of the estate; and 4. )he name of the person for whom letters are prayed for. 0o defect in the petition shall render void the issuance of the letters of administration. SECTION 4. COURT TO SET TIME FOR )EARIN . NOTICE T)EREOF 2ublication for 3 weeks and notice to heirs, creditors and other persons believed to have an interest in the estate is re'uired before hearing. No$e= *ec. 3 of this +ule is 7urisdictional. 4here no notice as re'uired by this section has been given to persons

ro"nd! &or Oppo!i$ion= 1. -ncompetence; 2. 2referential right of the heir under Sec. 4, Rule /6. SECTION C. )EARIN AND ORDER FOR LETTERS TO ISSUE Le$$er! o& Ad#ini!$ra$ion !%all i!!"e i& i$ i! pro/en $%a$= 1. 0otice as re'uired in *ec. 3 was given; and 2. )he decedent left no will; or there is no competent and willing e,ecutor. SECTION 8. ;)EN LETTERS OF ADMINISTRATION RANTED TO AN- APPLICANT 8etters can be granted to any person or any other applicant even if other competent persons are present if the latter fail to claim their letters when notified by the court.

R ULE 8" S PECIAL A DM INISTRAT OR

SECTION 1. APPOINTMENT ADMINISTRATOR OF SPECIAL

Special Ad#ini!$ra$or A representative of the decedent appointed by the probate court to care for and preserve his estate until an e,ecutor or general administrator is appointed (Fule *. $A, -.R. #o. &95(.(', #o*em2er '0, 10/4). Ancillar. Ad#ini!$ra$or A person appointed by the court in a state where the descendant was not domiciled to manage the assets and liabilities and to oversee the distribution of decedent<s estate in that state. *uch an administrator usually works as an ad7unct to the e,ecutor or administrator appointed in the state where the decedent was domiciled (See Per)ins *. Benguet $osolidated, ;nc., -r #o. &9'315., #o*em2er '0,1046).

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San Beda College of Law 2010 Centralized Bar Operations ;%en #a. a pro1a$e co"r$ appoin$ a !pecial ad#ini!$ra$orB 1. Belay in granting of letters by any cause including appeal in the probate of the will; 2. E,ecutor is a claimant of the estate that he represents (Section 6, Rule 64). No$e= -n the second instance, the administrator shall have the same powers as that of a general administrator but only insofar as the claim of the e,ecutor is concerned. Order o& Appoin$#en$ >Biscretionary? )he preference accorded by *ec. ! of +ule "# of the +ules of 1ourt to a surviving spouse refers to the appointment of a regular administrator, not to that of special administrator, and that the order appointing the latter lies within the discretion of the probate court, and is not appealable (PiAuan *. 1e -urrea, -.R. #o. &9 '101/, #o*em2er '0, 1044). Reg"lar Ad#ini!$ra$or Special Ad#ini!$ra$or ;%en doe! $%e po0er o& a !pecial ad#ini!$ra$or cea!eB After the 'uestions causing the delay are resolved and letters are granted to regular e,ecutor or administrator. I! an appoin$#en$ o& a !pecial ad#ini!$ra$or appeala1leB 0o, as e,pressly provided for in *ec. 1, +ule 1%$. )he only remedy against the appointment of a special administrator is $ertiorari under +ule ! . $ertiorari, however, re'uires nothing less than grave abuse of discretion (Dan *. -edorio, <r., -.R. #o. 144.'(, 15 ,arch '((6). Gowever, there must be a )emporary +estraining 9rder or -n7unction 9rder to stop the *pecial Administrator from assuming the position (Sec. /, Rule 4.) . An appointment of a regular administrator is appealable because it is a final order (1e BorAa *. Dan, -.R. #o. &9 45/4, #o*em2er 16, 10..). )here are important duties devolving on a regular administrator which a special administrator cannot perform, and there are many actions to be taken by the court which could not be accomplished before a regular administrator is appointed (Re7noso *. Santiago, -.R. #o. &93(30, 1ecem2er '0, 1050). No$e= A special administrator is appointed only for a limited time and for a specific purpose. 0aturally, because of the temporary and special character of his appointment, it was deemed by the law not advisable for any party to appeal from said temporary appointment (1e BorAa *. Dan, supra). 4hile a special administrator may commence and maintain suits under Sec. ', he cannot be sued by a creditor for the payment of the debts of the deceased >1e -ala *. -on@ales, et al., -.R. #o. &93('60, ,arch '4, 10'0). *uch suit must await the appointment of a regular administrator.

9rder of Appointment is 9rder of Appointment is interlocutory and is not final and is appealable. appealable. 9ne of the obligations is to 1annot pay debts of the pay the debts of the estate. estate. Appointed when decedent died intestate or did not appoint an e,ecutor in the will or will was disallowed. Appointed when there is delay in granting letters testamentary or administration or when the e,ecutor is a claimant of the estate.

SECTION ,. PO;ERS AND DUTIES OF SPECIAL ADMINISTRATOR 1. 2ossess and charge of the goods, chattels, rights, credits, and estate of the deceased and preserve the same; 2. 1ommence and maintain suit for the estate; 3. *ell only( a. 2erishable property; and b. 9ther property ordered sold by the court; 4. 2ay debts only as may be ordered by the court. )he special administrator also has the duty to submit an inventory and to render an accounting of his administration as re'uired by the terms of his bond (Sec 5, Rule 61). SECTION 4. ;)EN PO;ERS OF SPECIAL ADMINISTRATOR CEASE. TRANSFER OF EFFECTS. PENDIN SUITS

B ONDS A DM INISTRAT ORS

R ULE 8# OF E XECUTORS

AND

SECTION 1. BOND TO BE I+EN BEFORE ISSUANCE OF LETTERS. AMOUNT. CONDITIONS. ;%en 1ond i! &iled= ;efore an e,ecutor or administrator enters upon the e,ecution of his trust. A#o"n$= )o be fi,ed by the court.

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San Beda College of Law 2010 Centralized Bar Operations P"rpo!e= -t is intended as an indemnity to the creditors, the heirs and the estate. -t shall be accountable for any breach of duty that may be done by the administrator or e,ecutor. )he liability may be enforced by motion or in a separate civil action (Festin, p..4). Condi$ion! o& $%e 1ond!= 1. :ake within 3 months a true and complete inventory of the property of the deceased which came to his knowledge and possession; 2. Administer the estate and pay and discharge all debts, legacies and charges, including dividends declared by the court from the proceeds; 3. +ender a true and 7ust account within one year and when re'uired by the court; 4. 2erform all orders of the court. Ad#ini!$ra$orG! Bond H S$a$"$or. Bond $onditions prescri2ed 27 statute +orms part o+ 2ond agreement. )erms and effectivity of bond do not depend on payment of premium and does not e,pire until the administration is closed. As long as the probate court retains 7urisdiction of the estate, the bond contemplates a continuing liability (&u@on Suret7 *. !ue2rar, -.R. #o. &95(.1/, <anuar7 31, 1065). SECTION ,. BOND OF EAECUTOR ;)ERE DIRECTED IN ;ILL ;)EN FURT)ER BOND REEUIRED Even if the testator has directed in his will that his e,ecutor serve without a bond, the court may still re'uire him to file a bond conditioned only to pay the debts of the testator. SECTION 4. BONDS OF JOINT EAECUTORS AND ADMINISTRATORS SECTION :. BOND OF SPECIAL ADMINISTRATOR Condi$ion! o& $%e 1ond! 1. :ake and return a true inventory; 2. +ender accounting when re'uired by court; and 3. Beliver the estate to the person appointed e,ecutor or administrator or other authori&ed persons. As long as the probate court retains 7urisdiction of the estate, the bond contemplates a continuing liability (&u@on Suret7 *. !ue2rar, -r #o. &95(.1/, <anuar7 31, 1065).

SECTION 1. ADMINISTRATION RE+OFED IF ;ILL DISCO+ERED. PROCEEDIN S T)EREUPON ;%en le$$er! o& ad#ini!$ra$ion re/o>ed and po0er! cea!e= 4hen the decedent<s will is allowed and proved by the court after the issuance of letters of administration. D"$. o& ad#ini!$ra$or "pon re/oca$ion o& $%e le$$er! 1. *urrender the letters to the court; and 2. +ender his account within such time as the court may direct. 4hether the intestate proceeding already commenced should be discontinued and a new proceeding under a separate number and title should be constituted is entirely a matter of form and lies within the sound discretion of the court (Re7noso *. Santiago, -.R. #o. &93(30, 1ecem2er '0, 1050). No$e= )estate proceedings take precedence over intestate proceedings for the same estate. Fir!$ co"r$ H in$e!$a$eD !econd co"r$ H $e!$a$e= As a general rule, the court with which the petition is first filed must take cogni&ance of the settlement of the intestate estate. Gowever, if it learns thereafter that another court has before it a petition for the probate of the decedent<s will, it may hold the petition before it in abeyance and defer to the second court where the probate proceedings are pending and if the will is admitted to probate therein, it will definitely decline to take cogni&ance ($uenco *. $ourt o+ Appeals, -.R. #o. &9'5/5', =ct. '4, 10/3). ;ill di!co/eredD ad#ini!$ra$or alread. appoin$ed= -f during the pendency of intestate proceedings, a will of the decedent is discovered, proceedings for the probate of the will shall replace the intestate proceedings even if an administrator had already been appointed therein ($uenco *. $ourt o+ Appeals, supra). Gowever, 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 +acto nullify the letters of administration already issued or even authori&e the revocation thereof, until the alleged will has been proved and allowed by the court (Ad*incula *. Deodoro, -.R. #o. &90'6', ,a7 31, 10.4). SECTION ,. COURT MA- REMO+E OR ACCEPT RESI NATION OF EAECUTOR OR ADMINISTRATOR. PROCEEDIN S UPON DEAT)9 RESI NATION OR REMO+AL

R ULE 82
OF A DMINISTRATION D EATH R ESIGNATION AND R EMOVAL OF E XECUTORS AND

R EVOCAT ION

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San Beda College of Law 2010 Centralized Bar Operations ro"nd! &or re#o/al o& e?ec"$or or ad#ini!$ra$or 'RSPAI* 1. 0eglect to perform an order or 7udgment of the court or a duty e,pressly provided by these rules; 2. Absconding; or 3. Insanity or incapability or unsuitability to discharge the trust; 4. 0eglect to render accounts ("ithin 1 7ear and "hen reCuired 27 the court)> . 0eglect to !ettle estate according to these rules. O$%er +alid ro"nd! &or Re#o/al o& an Ad#ini!$ra$or= 1. Adverse interest of an administrator to that of the estate (-arcia *. ?asCue@, -.R. #o. &9'4665, April 3(, 10/(). 2. 2hysical inability and conse'uent unsuitability to manage the estate (1e BorAa *. Dan, -.R. #o. &945/4, #o*em2er 16,, 10..). 3. Aalse representation by an administrator in securing his appointment ($o2arru2ias *. 1i@on, -.R. #o. &9''., Fe2ruar7 '4, 1054). )he order of removal is appealable (Borromeo *. Borromeo, -.R. #o. &94343, Septem2er 1., 10..). No$e= 5rounds are not e,clusive. )he position of the administrator is one of confidence and when the court finds that the administrator is not entitled to such confidence, it is 7ustified in withdrawing the appointment and giving no valid efficacy thereto ($o2arru2ias *. 1i@on, supra). E?a#ple! o& /alid re#o/al o& ad#ini!$ra$or a. Bisbursement of funds of the estate without 7udicial approval; b. Aalse representation by an administrator in securing his appointment; c. Golding an interest adverse to that of the estate or by his conduct shows unfitness to discharge the trust; d. 2hysical inability and conse'uent unsuitability to manage the estate. Degree o& diligence re@"ired= An administrator is re'uired to e,ercise reasonable diligence and act in entire good faith in the performance of that trust. SECTION 4. ACTS BEFORE RE+OCATION9 RESI NATION OR REMO+AL TO BE +ALID 8awful acts of an administrator or e,ecutor before the revocation, resignation, or removal are valid. SECTION :. PO;ERS OF NE; EAECUTOR OR ADMINISTRATOR. RENE;AL OF LICENSE TO SELL REAL ESTATE Po0er o& $%e ne0 e?ec"$or or ad#ini!$ra$or 1. 1ollect and settle the estate not administered; 2. 2rosecute or defend actions commenced by or against the former e,ecutor or administrator; and 3. Gave e,ecution on 7udgments recovered in the name of former e,ecutor or administrator. Authority to sell previously given to the former e,ecutor or administrator may be renewed without notice or hearing.

R ULE 83 I NVENTORY AND A PPRAIS AL P ROVISION FOR S UPPORT OF F AM ILY

SECTION 1. IN+ENTOR- AND APPRAISAL TO BE RETURNED ;IT)IN T)REE MONT)S -nventory and appraisal must be made within 3 months from the grant of letters testamentary or of administration. )he three3month period is not mandatory. )he fact that an inventory was filed after the three3month period would not deprive the probate court of 7urisdiction to approve it. Gowever, an administrator<s une,plained delay in filing the inventory may be a ground for his removal (Se2ial *. Se2ial, -.R. #o. &9'3510, <une '/, 10/.). Approval of an inventory is not a conclusive determination of what assets constituted the decedent<s estate and of the valuation thereof. *uch determination is only provisional and a prima facie finding of the issue of ownership. 2roperty claimed by third persons may be included in the inventory as part of the assets of the estate and the probate court may order such inclusion, but such order of the probate court is only a prima +acie determination and does not preclude the claimants from maintaining an ordinary civil action for the determination of title (-on@ales *. $F; ,anila, -.R. #o. &93530., ,a7 10, 1061). SECTION ,. CERTAIN ARTICLES NOT TO BE IN+ENTORIED 1. 4earing apparel of the surviving spouse and minor children; 2. :arriage bed and bedding; 3. 2rovisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased. SECTION 4. ALLO;ANCE TO ;IDO; AND FAMIL-

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San Beda College of Law 2010 Centralized Bar Operations Allo0ance +efers to the monetary advances which are sub7ect to collation and are likewise deductible from their share in the estate of the decedent. Per!on! en$i$led $o allo0ance d"ring proceeding! 1. 8egitimate surviving spouse (#epomuceno *. $ourt o+ Appeals, -.R. #o. &94'0.', =cto2er 0, 106.); and 2. 1hildren of the decedent. No$e= According to Art. 1## of the 1ivil 1ode, the children need not be minors or incapacitated to be entitled to allowance (Santero *. $F; o+ $a*ite, -.R. #o. 41/((9 (3, Sept. '5, 106/). 5randchildren are not entitled to allowance under +ule #3 (Rui@ *. $ourt o+ Appeals, -.R. #o. 1164/1, <anuar7 '0, 1004). 4hen liabilities e,ceed the assets of the estate, his widow and children are not entitled to support pending the li'uidation of the intestate estate, on the ground that such support, having the character of an advance payment, is to be deducted from the respective share of each heir during distribution (Iagner *. ,oore, -.R. #o. &9'.65', ,arch 16, 10'/). repair to the heirs or devisees when directed so to do by the court; 4. )o make improvements on the properties under administration with the necessary court approval e,cept for necessary repairs (3errera, p. 1'1)> . )o possess and manage the estate when necessary( a. Aor the payment of debts; and b. Aor payment of e,penses of administration. So#e re!$ric$ion! on $%e po0er o& an ad#ini!$ra$or or e?ec"$or 'canno$ ABS(LCP* 1. 1annot ac'uire by purchase, even at public or 7udicial auction, either in person or mediation of another, the property under administration Art. 1501, #$$)> 2. 1annot 1orrow money without authority of the court; 3. 1annot !peculate with fund under administration (Sec. ', Rule 6.)> 4. 1annot lease the property for more than one year (Art. 16/6, #$$)> A view is held, however, that the aforesaid provision of Art. 1#"# of the 1ivil 1ode on agency should not apply to leases entered into by an e,ecutor or administrator, under the theory that they represent not only the estate but also the parties interested therein, that they are re'uired to file a bond and that their acts are sub7ect to specific provisions of law and orders of the probate court, which circumstances are not true with respect to agents (Regalado, p. 4.). . 1annot continue the business of the deceased unless authori&ed by the court (Sec. 1, Rule 65)> !. 1annot profit by the increase or decrease in the value of the property under administration (Sec. ', Rule 6.). No$e= )he right of an e,ecutor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be e,ercised so long as it is necessary for the payment of the debts and e,penses of the administration (Estate o+ 3ilario Rui@ *. $ourt o+ Appeals, -.R. #o. 1164/1, <anuar7 '0, 1004).

R ULE 84 G ENERAL P OWERS AND D UTIES OF E XECUTORS AND A DM INISTRAT ORS

SECTION 1. EAECUTOR OR ADMINISTRATOR TO )A+E ACCESS TO PARTNERS)IP BOOFS AND PROPERT-. )O; RI )T ENFORCED SECTION ,. EAECUTOR OR ADMINISTRATOR TO FEEP BUILDIN S IN REPAIR SECTION 4. EAECUTOR OR ADMINISTRATOR TO RETAIN ;)OLE ESTATE TO PA- DEBTS AND TO ADMINISTER ESTATE NOT ;ILLED Po0er! o& $%e e?ec"$or or ad#ini!$ra$or o& $%e e!$a$e 'BERIP* 1. )o have access to, and e,amine and take copies of 1ooks and papers relating to the partnership in case of a deceased partner; 2. )o e,amine and make invoices of the property belonging to the partnership in case of a deceased partner; 3. )o maintain in tenantable repair, houses and other structures and fences and to deliver the same in such

R ULE 85 A CCOUNT ABILITY AND C OMPENSATION OF E XECUTORS AND A DM INISTRAT ORS

SECTION 1. EAECUTOR OR ADMINISTRATOR C)AR EABLE ;IT) ALL ESTATE AND INCOME

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San Beda College of Law 2010 Centralized Bar Operations eneral R"le= )he e,ecutor or administrator is accountable for the whole estate of the deceased. Exception= Ge is not accountable for properties which never came to his possession. Exception to the Exception= 4hen through untruthfulness to the trust or his own fault or for lack of necessary action, the e,ecutor or administrator failed to recover part of the estate which came to his knowledge. SECTION ,. NOT TO PROFIT B- INCREASE OR LOSE B- DECREASE IN +ALUE Administrator or e,ecutor shall not profit by the increase of the estate nor be liable for any decrease which the estate, without his fault, might have sustained. SECTION 4. ;)EN NOT ACCOUNTABLE FOR DEBTS DUE ESTATE )he e,ecutor or administrator is not accountable if debt remains uncollected without his fault. SECTION :. ACCOUNTABLE FOR INCOME FROM REALT- USED B- )IM -f e,ecutor or administrator uses or occupies real estate under administration, he must account for it. SECTION C. ACCOUNTABLE IF )E NE LECTS OR DELA-S TO RAISE OR PA- MONE;%en acco"n$a1le= 1. -f an e,ecutor or administrator( a. 0eglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased; or b. 0eglects to pay over the money he has in his hands; and 2. )he value of the estate is lessened; or 3. Hnnecessary cost or interest accrues; or 4. )he persons interested suffer loss. SECTION 8. ;)EN ALLO;ED MONE- PAID AS COSTS SECTION 3. ;)AT EAPENSES AND FEES ALLO;ED EAECUTOR OR ADMINISTRATOR. NOT TO C)AR E FOR SER+ICES AS ATTORNE-. COMPENSATION PRO+IDED B- ;ILL CONTROLS UNLESS RENOUNCED E?pen!e! o& Ad#ini!$ra$ion )hose necessary for the management of the property, for protecting it against destruction or deterioration, and possibly for the production of fruits. Co#pen!a$ion i& $%ere i! no pro/i!ion in $%e 0ill 1. 2h24.%% a day for the time actually and necessarily employed; or 2. 1ommission. 3. A greater sum may be allowed if( a. )he estate is large; b. )he settlement has been attended with great difficulty; c. )he settlement has re'uired a high degree of capacity of the e,ecutor or administrator. A$$orne.G! &ee!= An administrator who is a lawyer may not recover attorney<s fees from the estate; his compensation is fi,ed by the rule but such compensation is in the nature of e,ecutor<s or administrator<s commissions, and never as attorney<s fees. A lawyer of an administrator or e,ecutor may not charge the estate for his fees, but rather, he must charge his client >the e,ecutor or the administrator?. 4here the administrator is himself the counsel for the heirs, it is the latter who must pay therefor. 4hen a lawyer has rendered legal services to the e,ecutor or administrator to assist him in the e,ecution of his trust, his attorney<s fees may be allowed as e,penses of administration. )he estate, is, however, not directly liable for his fees, the liability for the payment resting primarily on the e,ecutor or administrator. -f the administrator had paid the fees, he would be entitled to reimbursement from the estate (=ccena *. ,arCue@, -.R. #o. &9'/304, Septem2er 3(, 10/5). Proced"re &or collec$ion o& a$$orne.G! &ee! 1. +e'uest the administrator to make payment and file an action against him in his personal capacity and not as administrator should he fail to pay; or 2. 2etition in the testate or intestate proceeding asking the court, after notice to all persons interested, to allow his claim and direct the administrator to pay it as an e,pense of administration (3errera, p.1'3). SECTION 7. ;)EN EAECUTOR OR ADMINISTRATOR TO RENDER ACCOUNT eneral R"le= 4ithin one year from the time of receiving letters testamentary or letters of administration. Exception= An e,tension of time is allowed by the court 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 re'uire until the estate is wholly settled.

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San Beda College of Law 2010 Centralized Bar Operations )he fact that the final accounts had been approved does not divest the court of 7urisdiction to re'uire supplemental accounting for, aside from the initial accounting, the +ules provide that .he shall render such further accounts as the court may re'uire until the estate is wholly settled./ (Dumang *. &aguio, -.R. #o. &9.('//, Fe2ruar7 15, 106(). SECTION 5. EAAMINATIONS ON OAT) ;IT) RESPECT TO ACCOUNT E?a#ina$ion #a. 1e di!pen!ed 0i$% 0%en= 1. 0o ob7ection is made to the allowance of the account; and 2. -ts correctness is satisfactorily established by competent proof. )he heirs, legatees, distributees and creditors have the same privilege of being e,amined. SECTION 16. ACCOUNT TO BE SETTLED ON NOTICE SECTION 11. SURET- ON BOND MA- BE PART- TO ACCOUNTIN (Pineda *. $F; o+ Da7a2as, -.R. #o. &93(0'1, Fe2ruar7 14, 10'0). )he heirs, even after distribution, are liable for inheritance and estate ta,es (-o*ernment o+ the Philippine ;slands *. Pamintuan, -.R. #o. &933130, =cto2er 11, 103(). SECTION ,. TIME ;IT)IN ;)IC) CLAIMS S)ALL BE FILED S$a$"$e o& Non(Clai#! )he period fi,ed by the rule for the filing of the claims against the estate. Rea!on &or $%e r"le= Aor the speedy settlement of the affairs of the deceased and the early delivery of the property to the distributees, legatees or heirs. ;%ere $o File Clai#!= All money claims must be entertained by *ettlement 1ourt regardless of amount. (Sec. 1) -n other words, ;.2. ;lg. 12$ is not applicable. ;%en $o &ile clai#! eneral R"le= 4ithin the time fi,ed in the notice which shall not be more than 12 months nor less than ! months after the date of the first publication. 9therwise, they are barred forever. Even if the testator acknowledged the debt in his will and instructed the e,ecutor to pay the debt, the statute of non3 claims must still be complied with; otherwise the claim may also be barred. Exception= ;elated claims Bela$ed Clai#! 1laims not filed within the original period fi,ed by the court. 9n application of a creditor who has failed to file his claim within the time previously limited, at any time before an order of distribution is entered, the court may, for cause shown and on such terms as are e'uitable, allow such claim to be filed within a time not e,ceeding 1 month from the order allowing belated claims. No$e= )he statute of non3claims supersedes the statute of limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fi,ed by the court in the notice, then the claim is barred forever. Gowever, both statute of non3claims and statute of limitations must concur in order for a creditor to collect; thus, a creditor cannot claim, even if within the statute of non3claims, if his claim has already prescribed under the statute of limitations.

R ULE 86 C LAIM S
AGAINST

E STATE

SECTION 1. NOTICE TO CREDITORS TO BE ISSUED B- COURT Mone. Clai#! 1laims for money, debt or interest thereon upon a liability contracted by the decedent before his death (Festin, p. /.). ;%en #a. $%e co"r$ i!!"e no$ice! $o credi$or! $o &ile $%eir clai#!B -mmediately after granting letters testamentary or of administration. 1laims arising after his death cannot be presented e,cept for( 1. Auneral e,penses; and 2. E,penses of the last sickness of the decedent. 1laims for ta,es >inheritance and estate? due and assessed after the death of the decedent need not be presented in the form of a claim. )he court in the e,ercise of its administrative control over the e,ecutor or administrator may direct the latter to pay such ta,es

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San Beda College of Law 2010 Centralized Bar Operations Gowever, a creditor barred by the *tatute of 0on3claims may file a claim as a counterclaim in any suit that the e,ecutor or administrator may bring against such creditor (Sec .). ood e?c"!e &or la$e &iling )he pendency of the action before the regular courts was cited as a good e,cuse for the tardiness of the claim (Echaus *. Blanco, -.R. #o. &93(5.3, 1ecem2er 5, 1060). SECTION 4. PUBLICATION OF NOTICE TO CREDITORS. 2ublication of the notice for 3 successive weeks in a newspaper of general circulation in the province and post the same in 4 public places in the province and in 2 public places in the municipality where the decedent last resided. SECTION :. FILIN COP- OF PRINTED NOTICE. 1% days after publication and posting. No$e= A notice to creditors to file their claims is not proper if only a special administrator has been appointed as a special administrator is generally not empowered to pay the debts of the deceased (Sec. ', Rule 6() and his bond, unlike that of a regular administrator, is not conditioned upon the payment of such debts (Regalado, p. /5). SECTION C. CLAIMS ;)IC) MUST BE FILED UNDER NOTICE. IF NOT FILED9 BARREDD EACEPTIONS. 1laims referred to under this section refer to claims for the recovery of money and which are not secured by a lien against the property of the estate (=la*e *. $anlas, -.R. #o. &91'/(0, Fe2ruar7 '6, 104'). -f the claim is secured; apply *ec. " of this +ule. Clai#! 0%ic% !%o"ld 1e &iled "nder $%e S$a$"$e o& Non(clai#! 1. :oney claims, debts incurred by deceased during his lifetime arising from contract( a. E,press or implied; b. Bue or not due; c. Absolute or contingent. 2. 1laims for funeral e,penses; 3. Aor the last illness of the decedent; 4. Dudgment for money against decedent. No$e= )he enumeration is e,clusive (Festin, p. /.). A money claim arising from a crime of Cuasi9delict committed by the decedent is not included in the concept of claims which have to be filed under this +ule but should be the sub7ect of an action against the e,ecutor or administrator (Sec. 1, Rule 6/) or against the heirs (Belamala *. Polinar, -.R. #o. &9 '5(06, #o*em2er 16, 104/). Hnpaid ta,es are not covered by the statute of non3 claims as these are monetary obligations created by law (?era, et al. *. Fernande@, et al., -.R. #o. &9 31345, ,arch 3(, 10/0). A1!ol"$e Clai# *uch a claim as, if contested between living persons, would be proper sub7ect of immediate legal action and would supply a basis of a 7udgment for a sum certain. Con$ingen$ Clai# A conditional claim or claim that is sub7ect to the happening of a future uncertain event. -t has reference to the uncertainty of liability, and not to uncertainty of collection (-as)ell *. Dan Sit, -.R. #o. 165(., Septem2er '3, 10''). 1laims not yet due or contingent may be approved at their present value. A deficiency 7udgment is a contingent claim and therefore, must be filed with the probate court where the settlement of the deceased is pending, within the period fi,ed for the filing of claims (First #ational $it7 Ban) o+ #e" Eor) *. $heng Dan, -.R. #o. &915'35, Fe2ruar7 '6, 104'). Clai#! E?$ing"i!%ed 1. Dea$% 2ersonal to either of the parties and is e,tinguished by death E,amples( legal separation, annulment of marriage, declaration of nullity of marriage Ac$ion! 0%ic% S"r/i/e 1laim is not e,tinguished by death but shall be prosecuted as a money claim against the estate of the deceased E,ample( contractual money claim

4here the defendant dies while the action for a sum of money is pending against him in the 1ourt of Appeals, he shall be substituted therein by his legal representative but the final 7udgment of the appellate court shall not be enforceable by a writ of e,ecution but should be filed in the probate court as a money claim in accordance with *ec. of +ule #! (Paredes, et al. *. ,o7a, -.R. #o. &9 36(.1, 1ecem2er '4, 10/3). -f none of the heirs is willing to be substituted defendant, the creditor has to procure the appointment of an e,ecutor@administrator (Sec. 14, Rule 3).

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San Beda College of Law 2010 Centralized Bar Operations -f a final 7udgment had already been rendered against the decedent prior to his death, but without levy on e,ecution having been effected against his property, such 7udgment must also be filed as a claim against the estate in the manner provided for by this +ule. -f levy has already been made before his death, e,ecution shall proceed (Sec. / 8c:, Rule 30). SECTION 8. SOLIDAR- OBLI ATION OF DECEDENT 1laim should be filed against decedent as if he were the only debtor without pre7udice on the part of the estate to recover contribution from the other debtor. Join$ o1liga$ion o& deceden$ )he claim must be confined to the portion belonging to the decedent. the e,ercise of the right is discretionary upon the said e,ecutor or administrator and may not be ordered by the probate court upon its own motion (,analansan *. $astaneda, -.R. #o. &9534(/, <une '/, 10/6). SECTION 7. CLAIM OF EAECUTOR OR ADMINISTRATOR A AINST AN ESTATE )his is one of the instances where a special administrator is appointed. )he special administrator will have authority to act only with respect to the claim of the regular administrator or the e,ecutor (Regalado, p. 63). SECTION 5. )O; TO FILE A CLAIM. CONTENTS T)EREOF. NOTICE TO EAECUTOR OR ADMINISTRATOR )o0 $o &ile a clai#= 1. Beliver the claim with the necessary vouchers to the clerk of court; 2. *erve a copy thereof on the e,ecutor or administrator; 3. -f the claim is due, it must be supported by an affidavit stating the amount due and the fact that there has been no offsets; 4. -f the claim is not due or contingent, it must be accompanied by an affidavit stating the particulars thereof. SECTION 16. ANS;ER OF EAECUTOR OR ADMINISTRATOR. OFFSETS E,ecutor shall file his answer to the claim within 1 days after service of a copy of the claim. )he e,ecutor or administrator may interpose any counterclaim in offset of a claim against the estate. *aid counterclaim is regarded as a compulsory counterclaim as the failure to file the same shall bar the claim forever. SECTION 11. DISPOSITION OF ADMITTED CLAIM )he heir, legatee or devisee may oppose the claim admitted by the e,ecutor or administrator. SECTION 1,. TRIAL OF CONTESTED CLAIM )he court may refer the claim to a commissioner. SECTION 14. JUD MENT APPEALABLE Dudgment against the e,ecutor and administrator shall not create any lien upon the property of the estate or does not constitute a specific lien which may be registered on such property. Dudgment of a probate court approving or disapproving a claim is appealable. No$e= )he mode of appeal is record on appeal and must be filed within 3% days from notice of 7udgment.

SECTION 3. MORT A E DEBT DUE FROM ESTATE Credi$or %olding a clai# !ec"red 1. a #or$gage or o$%er colla$eral !ec"ri$. Al$erna$i/e re#edie!= 'AFR* 1. Abandon or waive the security and prosecute his claim against the estate and share in the general distribution of the assets of the estate; 2. Foreclose his mortgage or reali&e upon his security by action in court making the e,ecutor or administrator a party defendant and if there is 7udgment for deficiency, he may file a claim >contingent? against the estate within the statute of non3claims; 3. Rely solely on his mortgage and foreclose >judicially or extrajudicially? the same at anytime within the period of the statute of limitations but he cannot be admitted as creditor and shall not receive in the distribution of the other assets of the estate. No$e= )he mortgage creditor can avail of only one of the three remedies and if he fails to recover under that remedy he can not avail of any of the other two remedies (Bachrach ,otor $o., ;nc., *. ;carangal, -.R. #o. &9 5.3.(, ,a7 '0,1030). )he rule reserves a right to the e,ecutor or administrator of an estate to redeem a mortgaged or pledged property of a decedent which the mortgage or pledgee has opted to foreclose, instead of filing a money claim with the probate court, under said *ection " of +ule #!. 4hile the redemption is sub7ect to the approval of the probate court,

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San Beda College of Law 2010 Centralized Bar Operations SECTION 1:. COSTS eneral R"le= )he heirs have no legal standing to sue for the recovery of property of the estate during the pendency of administration proceedings. Exceptions= 1. -f the e,ecutor or administrator is unwilling or refuses to bring suit; 2. 4hen the administrator is alleged to have participated in the act complained of and he is made a party defendant; 3. 4hen there is no appointed administrator (see Rio+erio, et al. *. $ourt o+ Appeals, -.R. #o. 1'0((6, <anuar7 13, '((5). SECTION :. EAECUTOR OR ADMINISTRATOR MACOMPOUND ;IT) DEBTOR 4ith the approval of the court, an e,ecutor or administrator may compound with the debtor of the deceased for a debt due, and may give a discharge of such debt on receiving a 7ust dividend of the estate of the debtor. SECTION C. MORT A E DUE ESTATE MA- BE FORECLOSED No$e= )here is no need for a special authority from the court for the administrator or e,ecutor to bring an action for foreclosure on behalf of the estate ($alim2as *. Paguio, -.R. #o. &9''10/, 1ecem2er ', 10'5). SECTION 8. PROCEEDIN S ;)EN PROPERTCONCEALED9 EMBEIILED9 OR FRAUDULENTLCON+E-ED )he court may cite any person suspected of having concealed, embe&&led, or conveyed away any of the money, goods, or chattels of the deceased, or having in his possession or knowledge any deed, contract, bond, or other writing which contains evidence of or tends to disclose the right, title, interest, or claim of the deceased to real or personal estate, or the last will and testament of the deceased, to appear before it and be e,amined under oath; if such person refuses to appear, or to answer on such e,amination or such interrogatories, the court may punish him for contempt, and may commit him to prison. )he interrogatories put to any such person, and his answers thereto, shall be in writing and filed with the clerk<s office. P"rpo!e= )o elicit information or to secure evidence from those persons suspected of having possession or knowledge of property or will of the deceased, or of having concealed, embe&&led or conveyed away any properties of the deceased (3errera, p. 1/1).

R ULE 87 A CTIONS BY AND AG AINS T E XECUTORS AND A DM INISTRAT ORS

SECTION 1. ACTIONS ;)IC) MA- AND ;)IC) MANOT BE BROU )T A AINST EAECUTOR AND ADMINISTRATOR Actions which may be commenced directly against the e,ecutor or administrator( 1. +ecovery of real or personal property or any interest therein from the estate; 2. Enforcement of a lien thereon; 3. Action to recover damages for any in7ury to person or property, real or personal >tortuous acts?. )hese are actions that survive the death of the decedent. An action for revival of money 7udgment may be filed against the administrator to preempt prescription of 7udgment (Romualde@ *. Diglao, -.R. #o. &9.11.1, <ul7 '5, 1061). R"le 739 Sec. 1 Actions that may be commenced directly against the e,ecutor and administrator 1. 1. +ecovery of real@ personal property >or any interest therein? from the estate; 2. 2. 3. Enforcement of a lien 3. thereon; 4. . Action to recover damages 4. arising from tort. . R"le 789 Sec. C Actions that may be commenced against the estate of the deceased :oney claims, debts incurred by the deceased during his lifetime arising from contract; 1laims for funeral e,penses or for the last illness of the decedent; Dudgment for against decedent. money

SECTION ,. EAECUTOR OR ADMINISTRATOR MABRIN OR DEFEND ACTIONS ;)IC) SUR+I+E SECTION 4. )EIR MA- NOT SUE UNTIL S)ARE ASSI NED ;efore distribution is made or before any residue is known, the heirs and devisees have no cause of action against the e,ecutor or administrator for recovery of the property left by the decedent.

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San Beda College of Law 2010 Centralized Bar Operations SECTION 3. PERSON ENTRUSTED ;IT) ESTATE COMPELLED TO RENDER ACCOUNT SECTION 7. EMBEIILEMENT BEFORE LETTERS ISSUED )he responsible person shall be liable to an action in favor of the e,ecutor or administrator of the estate for double the value of the property sold, embe&&led, or alienated, to be recovered for the benefit of the estate. event, the action should be in the name of all the creditors (3errera, p. 1/.).

P AYM ENT

R ULE 88 OF THE D EBTS E STATE

OF THE

SECTION 5. PROPERT- FRAUDULENTL- CON+E-ED B- DECEASED MA- BE RECO+ERED. ;)EN EAECUTOR OR ADMINISTRATOR MUST BRIN ACTION )his provision applies when there is a deficiency of assets in the hands of the e,ecutor or administrator for the payment of the debts and e,penses for administration. )he e,ecutor or administrator may, on his own initiative or on option of the creditors and as directed by the court, institute an action for the recovery of said property, but the court may direct the creditors to defray part of the costs and e,penses of the suit since said action is for their own benefit (Regalado, p. 03). SECTION 16. ;)EN CREDITOR MA- BRIN ACTION. LIEN FOR COSTS Re@"i!i$e! Be&ore Ac$ion #a. 1e &iled 1. Credi$or!= 'D(FAN LaBaN* 1. )here is a deficiency of assets in the hands of an e,ecutor or administrator for the payment of debts and e,penses of administration; 2. )he deceased in his lifetime had made or attempted to make a &raudulent conveyance of his property or had so conveyed such property that by law the conveyance would be void as against his creditors; 3. )he sub7ect of the attempted conveyance would be liable to attachment in his lifetime; 4. )he e,ecutor or administrator has shown no desire to file action or failed to institute the same within a reasonable time; . Leave is granted by the court to the creditor to file the action; !. A 1ond is filed by the creditor; ". )he action by the creditor is in the name of the e,ecutor or administrator. No$e= )he last three re'uisites are unnecessary where the grantee is the e,ecutor or administrator himself, in which

SECTION 1. DEBTS PAID IN FULL IF ESTATE SUFFICIENT A writ of e,ecution is not the proper procedure to satisfy debts. )he court must order the sale or mortgage of the properties of decedent, the proceeds of which will satisfy the debts and e,penses (Aldami@ *. <udge o+ $F; o+ ,indoro, -.R. #o. &9'34(, 1ecem2er '0, 1050). I! e?ec"$ion a proper re#ed. $o !a$i!&. an appro/ed clai#B 0o, because( 1. 2ayment approving a claim does not create a lien upon a property of the estate; 2. *pecial procedure is for the court to order the sale to satisfy the claim. eneral R"le= 2ayment of the debts of the estate must be taken in the following order of preference( 1. Arom the portion or property designated in the will, 2. Arom the personal property, and 3. Arom the real property. Exception= )he court, on petition of interested parties, may modify such order of disposition. SECTION ,. PART OF ESTATE FROM ;)IC) DEBT PAID ;)EN PRO+ISION MADE B- ;ILL -f the testator makes a provision in his will or designates the estate to be appropriated for the payment of his debts that will be followed. ;ut if it is not sufficient, such part of the estate as is not disposed of by will, if any, shall be appropriated for that purpose. SECTION 4. PERSONALT- FIRST C)AR EABLE FOR DEBTS9 T)EN REALTT0o in!$ance! 0%en real$. i! lia1le &or de1$! and e?pen!e! 1. 4hen the personal estate of the decedent is not sufficient for that purpose; 2. 4here the sale of such personalty would be to the detriment of the participants of the estate.

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San Beda College of Law 2010 Centralized Bar Operations SECTION :. ESTATE TO BE RETAINED TO MEET CONTIN ENT CLAIMS -f the court is satisfied that the contingent claim duly filed is valid, it may order the e,ecutor or administrator to retain in his hands a sufficient part of the estate to pay a portion e'ual to the dividend of the creditors. Re@"i!i$e! 'FA+*= 1. 1ontingent claim is duly &iled; 2. )he claim has become absolute; and 3. 1ourt is satisfied that the claim is /alid. creditors in and outside the 2hilippines may receive an e'ual share, in proportion to their respective credits. SECTION 16. ;)EN AND )O; CLAIM PRO+ED OUTSIDE T)E P)ILIPPINES A AINST INSOL+ENT RESIDENTGS ESTATE PAID 1laims proven outside the 2hilippines where the e,ecutor had knowledge and opportunity to contest its allowance therein may be added to the list of claims in the 2hilippines against the estate of an insolvent resident and the estate will be distributed e'ually among those creditors. Principle o& reciproci$.= )he benefits of *ections $ and 1% cannot be e,tended to the creditors in another country if the property of such deceased person there found is not e'ually apportioned to the creditors residing in the 2hilippines. SECTION 11. ORDER FOR PA-MENT OF DEBTS SECTION 1,. ORDERS RELATIN TO PA-MENT OF DEBTS ;)ERE APPEAL IS TAFEN. )he court may order the payment of the debts or may order the distribution among the creditors whose claims are definitely allowed, leaving in the hands of the e,ecutor or administrator sufficient assets to pay the claim disputed and appealed. SECTION 14. ;)EN SUBSEEUENT DISTRIBUTION OF ASSETS ORDERED Condi$ion!= 1. 4hole of the debts are not paid; 2. 4hole assets are not distributed; or 3. 9ther assets afterwards come to the hands of the e,ecutor or administrator. SECTION 1:. CREDITORS TO BE ACCORDANCE ;IT) TERMS OF ORDER PAID IN

SECTION C. )O; CONTIN ENT CLAIM BECOMIN ABSOLUTE IN T;O -EARS ALLO;ED AND PAID 1. -f such contingent claim becomes absolute and is presented to the court as an absolute claim within two years from the time allowed for the presentation of claims, it will be paid in the same manner as the other absolute claims. 2. -f the contingent claim matures after the e,piration of the two years, the creditors may sue the distributees, who are liable in proportion to the shares in the estate respectively received by them (<aucian *. !uerol, -.R. #o. &9113(/, =cto2er ., 1016). -t has been ruled that the only instance wherein a creditor can file an action against a distributee of the debtor<s assets is under *ec. , +ule ##. )he contingent claims must first have been established and allowed in the probate court before the creditors can file an action directly against the distributees (1e Bautista *. 1e -u@man, -.R. #o. &9'6'06, #o*em2er '., 1063). SECTION 8. COURT TO FIA CONTRIBUTI+E S)ARES ;)ERE DE+ISEES9 LE ATEES9 OR )EIRS )A+E BEEN IN POSSESSION SECTION 3. ORDER OF PA-MENT IF ESTATE INSOL+ENT -f estate is insolvent, as in liabilities are more than the assets, *ec." in relation to Art. 1% $ and 223$ to 22 1 of the 1ivil 1ode >1oncurrence and 2reference of 1redits? must apply. SECTION 7. DI+IDENDS TO BE PAID IN PROPORTION TO CLAIMS SECTION 5. ESTATE OF INSOL+ENT NONRESIDENT9 )O; DISPOSED OF -n case administration is taken in the 2hilippines of the estate of a person who was at the time of his death an inhabitant of another country, and who died insolvent, his estate in the 2hilippines shall be so disposed of that his

SECTION 1C. TIME FOR PA-IN DEBTS AND LE ACIES FIAED9 OR EATENDED AFTER NOTICE9 ;IT)IN ;)AT PERIODS *hall not e,ceed 1 year in the first instance. ;ut court may e,tend period on application of e,ecutor or administrator and after hearing and notice on the following conditions( 1. )he e,tension must not e,ceed ! months for single e,tension; 2. )he whole period allowed to the original e,ecutor or administrator shall not e,ceed 2 years.

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San Beda College of Law 2010 Centralized Bar Operations No$e= )he provision is directory and e,tensions of the period may be granted by the court taking into account the circumstances attending the distribution of the estate (Regalado, p. 04). SECTION 18. SUCCESSOR OF DEAD EAECUTOR OR ADMINISTRATOR MA- )A+E TIME EATENDED ON NOTICE ;IT)IN A CERTAIN PERIOD *uccessor of deceased e,ecutor or administrator may be given an e,tension not to e,ceed ! months. Ra$io= )he reason behind this re'uirement is that the heirs are the presumptive owners. *ince they succeed to all the rights and obligation of the deceased from the moment of the latter<s death, they are the persons directly affected by the sale or mortgage and therefore cannot be deprived of the property, except in the manner provided by law (,aneclang *. Baun, -.R. #o. &9'/6/4, April '', 100').

R ULE 8! S ALES M ORTGAGES AND OTHER E NCUM BRANCES OF P ROPERTY OF D ECEDENT

SECTION 1. ORDER OF SALE OF PERSONALT)he court may order the whole or part of the personal estate to be sold if necessary( 1. )o pay debts and e,penses of administration; 2. )o pay legacies; or 3. )o cover e,penses for the preservation of the estate. SECTION ,. ;)EN COURT MA- AUT)ORIIE SALE9 MORT A E9 OR OT)ER ENCUMBRANCE OF REALT- TO PA- DEBTS AND LE ACIES T)OU ) PERSONALT- NOT EA)AUSTED 1. -f personal estate is not sufficient to pay debts, e,penses of administration and legacies; or 2. -f the sale of personal estate may in7ure the business or other interests of those interested in the estate; and 3. -f the testator has not made sufficient provision for payment of such debts, e,penses and legacies; 4. -f the deceased was in his lifetime under contract, binding in law to deed real property to beneficiary (Section 6)> . -f the deceased during his lifetime held real property in trust for another person (Section 0)> Re@"i!i$e!= 1. Application of e,ecutor@administrator; 2. 4ritten notice to heirs, devisees and legatees; and 3. Gearing. No$e= Assets in the hands of e,ecutor@administrator will not be reduced to prevent a creditor from receiving his full debt or diminish his dividends. No$ice i! #anda$or.= 4ithout notice and hearing, the sale, mortgage or encumbrance is void.

SECTION 4. PERSONS INTERESTED MA- PRE+ENT SUC) SALE9 ETC.9 B- I+IN BOND -f the opposition to the sale is based on the fact that the oppositor claims title to the property to be sold, the court will hold in abeyance the authority to sell such property until the issue of ownership has been settled in an ordinary action, since the probate court generally has no 7urisdiction to resolve issues of ownership in the administration proceedings (Pio Barreto Realt7 1e*., ;nc. *. $ourt o+ Appeals, et al., -.R. #os. 4'531933, August 31, 1065). Condi$ion! o& 1ond= )o pay the debts, e,penses of administration and legacies within such time as the court directs. SECTION :. ;)EN COURT MA- AUT)ORIIE SALE OF ESTATE AS BENEFICIAL TO INTERESTED PERSONS. DISPOSAL OF PROCEEDS )he court may authori&e the sale of whole or part of the estate if it appears beneficial to the heirs, devisees, legatees, and other interested persons. )he proceeds shall be assigned to the persons entitled to the estate in the proper proportions. SECTION C. ;)EN COURT MA- AUT)ORIIE SALE9 MORT A E OR OT)ER ENCUMBRANCE OF ESTATE TO PA- DEBTS AND LE ACIES IN OT)ER COUNTRIES 4hen it appears from records and proceedings of a probate court of another country that the estate of the deceased in foreign country is not sufficient to pay debts and e,penses. SECTION 8. ;)EN COURT MA- AUT)ORIIE SALE9 MORT A E OR OT)ER ENCUMBRANCE OF REALTACEUIRED ON EAECUTION OR FORECLOSURE SECTION 3. RE ULATIONS FOR RANTIN AUT)ORIT- TO SELL9 MORT A E9 OR OT)ER;ISE ENCUMBER ESTATE Application for authority to sell, mortgage or encumber property of the estate may be denied by the court if(

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San Beda College of Law 2010 Centralized Bar Operations 1. )he disposition is not for any of the reasons specified by the rules; or 2. Hnder *ection 3 +ule #$, any person interested in the estate gives a bond conditioned to pay the debts, e,penses of administration and legacies. In ca!e o& !ale9 #a. $%ere 1e pa.#en$ in in!$all#en$B As a general rule no because one of the duties of an e,ecutor or administrator is to settle the debts of the estate; thus, there is a need for immediate cash. )he e,ception is when the court so authori&es (Sec. 1., Rule 66). SECTION 7. ;)EN COURT MA- AUT)ORIIE CON+E-ANCE OF REALT- ;)IC) DECEASED CONTRACTED TO CON+E-. NOTICE. EFFECT OF DEED SECTION 5. ;)EN COURT MA- AUT)ORIIE CON+E-ANCE OF LANDS ;)IC) DECEASED )ELD IN TRUST Li@"ida$ion )he determination of all assets of the estate and payment of all debts and e,penses decedent ($onde *. A2a7a, -.R. #o. 5'/., ,arch '3, 10(0), the validity of disinheritance effected by the testator (3ilado *. Ponce de &eon, -.R. #o. 6('(9R, =cto2er '', 10.3), and the status of a woman who claims to be the lawful wife of the decedent (Dorres *. <a*ier, -.R. #o. &9 1(.4(, ,arch '5, 1014). Gowever, the adoption decree cannot be assailed collaterally in settlement proceedings (Santos *. Aran@anso, -.R. #o. &9'405(, August '1, 106'). Declara$ion o& )eir! )he probate court has the power to entertain the 'uestion whether or not a person is an acknowledged natural child of the decedent. )hus, an action for compulsory recognition of a natural child may be instituted and decided in the proceeding for the settlement of the estate of the ancestor. ;ut an adoption decree cannot be assailed in the settlement of the estate of the ancestor (3errera, p.'1(). ;%en i! $i$le /e!$edB Arom the finality of the order of distribution. 9rders that determine who the heirs are and their distributive shares are appealable. -f not appealed within the reglementary period, they become final (;mperial *. ,uno@, -.R. #o. &93(/6/, August '0, 10/5). No$e= )he probate court loses 7urisdiction over the settlement proceedings only upon payment of all debts and e,penses of the obligor and delivery of the entire estate to all the heirs (-uilas *. <udge o+ $F; o+ Pampanga, -.R. #o. &9'440., <anuar7 31, 10/') and@or persons entitled thereto. Condi$ion! preceden$ $o 1e co#plied 0i$% &or $%e i!!"ance o& an order o& di!$ri1"$ion 1. *howing that the e,ecutor, administrator or person interested in the estate applied for it; and 2. )he re'uirements as to notice and hearing upon such application have been fulfilled. Pro%i1i$ion again!$ in$er&erence 1. o$%er co"r$!= -n the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent<s estate, a court should not interfere with probate proceedings pending in a co3 e'ual court (3errera, p. '1.). Re#ed. o& an %eir 0%o %a! no$ recei/ed %i! !%are= 1. Aile a motion with the probate court for delivery to him of his share; or 2. -f the estate proceedings have been closed, file a motion for reopening of the proceeding, within the prescriptive period.

R ULE !" D ISTRIBUTION AND P ART ITION THE E ST ATE

OF

SECTION 1. ;)EN ORDER FOR DISTRIBUTION OF RESIDUE MADE eneral R"le= An order of distribution shall be made after payment of all debts, funeral e,penses, e,penses for administration, allowance of the widow and inheritance ta, is made. Exception= -f the distributees or any of them gives a bond conditioned for the payment of said obligation, the order of distribution may be made e*en 2e+ore pa7ments o+ all de2ts, etc. -n these proceedings, the court shall( 1. 1ollate; 2. Betermine heirs; and 3. Betermine the share of each heir. A separate action for the declaration of heirs is not necessary. -ncluded in the 7urisdiction of the probate court to make a declaration of heirs is the power to entertain the 'uestion whether or not a person is acknowledged natural child of

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San Beda College of Law 2010 Centralized Bar Operations No$e= )he court ac'uires 7urisdiction over all persons interested, through the publication of the notice prescribed and any order that may be entered is binding against all of them (,analo *. Paredes, -.R. #o. '5146, Septem2er '', 10'.). -t was ruled that a final order of distribution of the estate of a deceased person vests the title to the land of the estate in the distributes; and that the only instance where a party interested in a probate proceeding may have a final li'uidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the same case by proper motion within the reglementary period (1el Rosario ?da. 1e Al2erto *. $ourt o+ Appeals, -.R. #o. &9'0/.0, ,a7 16, 1060). ;ri$ o& E?ec"$ion eneral R"le= 2robate court cannot issue writs of e,ecution. Ra$ionale= -ts orders usually refer to the ad7udication of claims against the estate which the e,ecutor@administrator may satisfy without the need of e,ecutory process (3errera, p. '''). Exceptions= 'CEE* 1. )o satisfy the contributive share of the devisees, legatees and heirs when the latter had entered prior possession over the estate (Sec. 4, Rule 66)> 2. )o enforce payment of the e,penses of partition (Sec. 3, Rule 0()> 3. )o satisfy the costs when a person is cited for e,amination in probate proceedings (Sec. 13, Rule 15'). SECTION ,. EUESTIONS AS TO AD+ANCEMENT TO BE DETERMINED SECTION 4. B- ;)OM EAPENSES OF PARTITION PAID 1. ;y the e,ecutor or administrator if he has sufficient effects in his hands and when e'uitable and not inconsistent with the testator<s intention; otherwise, 2. ;y the parties in proportion to their respective shares or interest in the premises. No$e= )his is one of the instances where a writ of e,ecution may be issued. SECTION :. RECORDIN T)E ORDER OF PARTITION OF ESTATE

SECTION 1. ;)EN AND B- ;)OM PETITION FILED E!c%ea$ )he proceeding whereby the real and personal property of a deceased person in the 2hilippines, who dies without leaving any will >or if the will was not allowed, hence, intestacy? and without any legal heirs, becomes the property of the *tate upon his death. Na$"re o& e!c%ea$ proceeding!= Escheat is not an ordinary civil action but a special proceeding that should be commenced not by complaint but by petition (,unicipal $ouncil o+ San Pedro, &aguna *. $olegio de San <ose, -.R. #o. &95.54(, Fe2ruar7 '., 1036). T%ree in!$ance! o& e!c%ea$! 1. 4hen a person dies intestate leaving no heir but leaving property in the 2hilippines (Section 1)> 2. Re*ersion Proceedings 6 *ale in violation of the 1onstitutional provision; )his shall be governed by Rule 01. Gowever, the action must be instituted in the province where the land lies in whole or in part. No$e= +eversion will not be allowed even if the original buyer was an alien, if later on the title to the property was transferred by succession to the buyer<s heirs who are 'ualified parties, i.e. 2hilippine citi&ens (see Repu2lic *. Registr7 o+ 1eeds o+ Roxas $it7, -.R. #o. 1.6'3(, 14 <ul7 '((6). 3. Hnclaimed ;alances Act (dormant accounts +or 1( 7ears shall 2e escheated). Escheat under the %nclaimed Balances Acts must be filed in the +)1 of the place where the dormant deposits are found. ;%a$ i! $%e 1a!i! o& $%e !$a$eG! rig%$ $o recei/e proper$. in e!c%ea$B 9rder of succession under the 1ivil 1ode, the state is the last heir of the decedent. ;%o i! $%e real par$. in in$ere!$B -n all actions for the reversion to the 5overnment of lands of the public domain or improvements thereon, the +epublic of the 2hilippines is the real party in interest. )he action shall be instituted by the *olicitor 5eneral or the officer acting in his stead, in behalf of the +epublic of the 2hilippines (&uis B. ,anese, et. al. *. Sps. ?elasco, et. al., -.R. #o. 145('5, <anuar7 '0, '((0). ;%ere $o &ile= +esident 6 +)1 of last residence.

R ULE !# E SCHE ATS

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San Beda College of Law 2010 Centralized Bar Operations 0on3+esident 6 +)1 of the place where his estate is located. Re@"i!i$e! &or &iling o& pe$i$ion= 1. )hat a person died intestate; 2. )hat he left no heirs or persons by law entitled to the same; and 3. )he deceased le+t properties. SECTION ,. ORDER FOR )EARIN -f the petition is su++icient in +orm and su2stance the court shall( 1. :ake an order of hearing 6 hearing shall not be more than 4 months a+ter entr7 o+ order; 2. Birect the publication of a copy of the order 6 at least once a week for 4 consecuti*e "ee)s. Re#ed. o& re!ponden$= 4hen the petition does not state facts which entitle the petitioner to the remedy prayed for, the respondent may file a ,otion to 1ismiss the petition (3errera, p.''/). SECTION 4. )EARIN AND JUD MENT Re@"i!i$e!= 1. 2ublication of the order; 2. 2erson died intestate; 3. Ge is sei&ed of real@personal property in the 2hilippines; 4. Ge left no heir or person entitled to such property; and . )here is no sufficient cause to the contrary. To 0%o# $%e proper$. e!c%ea$ed 0ill 1e a!!igned= 1. ;+ personal propert7 6 to the municipality or city where he last resided; 2. ;+ real propert7 6 to the municipality or city where the property is situated; 3. ;+ deceased ne*er resided in the Philippines 6 to the municipality or city where the property may be found. )he court, at the instance of an interested party, or on its own motion, may order the establishment of a per#anen$ $r"!$, so that only the income from the property shall be used (Sec. 3, Rule 01). )he right to escheat may be waived e,pressly or impliedly (3errera, p.''0). SECTION :. ;)EN AND B- ;)OM CLAIM TO ESTATE FILED ;%o #a. &ile a clai# on $%e e!c%ea$ed proper$.= Any devisee, legatee, heir, widow@er, or other person entitled thereto. ;%en $o File= 4ithin years from date of 7udgment, other"ise it will be 1arred &ore/er. Ra$ionale= )o encourage would3be claimants to be punctual in asserting their claims (Festin, p.1(3). SECTION C. OT)ER ACTIONS FOR ESC)EATS Period o& &iling clai#= 7udgment. 4ithin years from the date of

No$e= Hnder Art. 1%14 of the 1ivil 1ode, the 3year period is reckoned +rom the date the propert7 "as deli*ered to the state and further provides that if the property had been sold, the municipality or city shall be accountable only for such part of the proceeds as may not have been lawfully spent. B. 0%o#= A person with interest. 2roceedings in escheat cannot be converted into settlement of the estate. Aor the distribution of the estate of the decedent to be instituted, the proper petitions must be presented and the proceedings should comply with the re'uirements of the +ule. An escheat court does not have the power to order or proceed with the distribution of the estate of a decedent in escheat proceedings and ad7udicate the properties to the oppositors (,unicipalit7 o+ ,agalloon, #egros =cc. *. ;gnatius 3enr7 Be@ore, -.R. #o. &9 151./, =cto2er '4, 104().

G ENERAL G UARDIANS G UARDIANS HIP

AND

5uardianship of minors is now governed by the +ule on 5uardianship of :inors (A.,. #o. (39('9(.9S$) which took effect on :ay 1, 2%%3 while guardianship of incompetents who are not minors is still governed by the provisions of the +ules of 1ourt on 5uardianship (Rule 0' to Rule 0/) (Sec. '/, A.,. #o. (39('9(.9S$). "ardian!%ip )he power of protective authority given by law and imposed in an individual who is free and in en7oyment of his rights over one whose weakness on account of his age or other infirmity renders him unable to protect himself (3errera, p. '3.). Ba!i!= Parens patriae P"rpo!e= )o safeguard the right and interests of minors and incompetent persons.

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San Beda College of Law 2010 Centralized Bar Operations "ardian A person in whom the law has entrusted the custody and control of the person or estate or both of an infant, insane or other person incapable of managing his own affairs (3errera, p. '3.). No$e= )he court, in guardianship proceedings, is solely concerned with the ward<s custody and proper administration of his properties. 1onflicts regarding ownership or title in the hands of a guardian, in his capacity as such should be litigated in a separate proceeding (Festin, p.1'4?. -n guardianship proceedings, the court cannot actually order the delivery of the ward<s property found to be embe&&led, concealed or conveyed except when the title of the ward to the same is clear and indisputable. Absent the e,ception, the recovery of such property must be made in a separate proceeding >$ui *. Piccio, -.R. #o. &9 .131, <ul7 31, 10.'). Find! o& "ardian! A. According $o !cope= 1. uardian of the person 6 one who has been lawfully invested with the care of the person of the minor; 2. uardian of the property 6 one appointed to have the management of the estate of a minor or incompetent; 3. eneral !uardian 6 one appointed to have the care and custody of the person and of all the property of the ward (3errera, p. '3/). ;. According $o con!$i$"$ion= 1. "e!al !uardian 6 without need of 7udicial appointment; 2. uardian ad litem 6 appointed by courts of 7ustice to prosecute or defend a minor, insane or person declared to be incompetent, in an action in court. 3. #udicial !urdian 6 appointed in pursuance to law, as guardian for insane persons, prodigals, minors, etc. (3errera, p. '3/). Co"r$! 0i$% 2"ri!dic$ion 1. Regional Trial Co"r$! 6 ;.2. ;lg. 12$ provides that +)1s have 7urisdiction over actions and special proceedings falling within the e,clusive original 7urisdiction of the Duvenile and Bomestic +elations 1ourt (3errera, p. '36). +)1 has 7urisdiction over proceedings on guardianship of incompetents. 2. Fa#il. Co"r$! 6 +.A. 0o. #3!$ otherwise known as Aamily 1ourts Act of 1$$" vested the Aamily 1ourts with e,clusive original 7urisdiction on guardianship of minors (3errera, p. '36). Proced"re &or "ardian!%ip &or Inco#pe$en$ Per!on! 0%o are no$ Minor! Pe$i$ion for the Appointment of a 5uardian Co"r$ Order fi,ing the hearing of the petition No$ice of the hearing )earing and Appoin$#en$ of the guardian Ser/ice o& J"dg#en$ on the 8ocal 1ivil +egistrar Filing o& Bond by the guardian I!!"ance of .8etters of 5uardianship/ Ter#ina$ion of guardianship

R ULE !2 V ENUE
SECTION 1. ;)ERE TO INSTITUTE PROCEEDIN S J"ri!dic$ion= Re!iden$ 6 +)1 of his residence Non(Re!iden$ 6 +)1 of the place where his property is located.

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San Beda College of Law 2010 Centralized Bar Operations SECTION ,. MEANIN JINCOMPETENTK OF T)E ;ORD 2. )he incompetent. )here is no re'uirement for publication, only notice except in case of a nonresident incompetent. Gowever, service of notice upon the persons mentioned in the petition, including the incompetent who is not a minor, is mandatory and 7urisdictional. -f the person is insane, service of notice upon the Birector of the Gospital where he is hospitali&ed is sufficient. SECTION :. OPPOSITION TO PETITION :ust be in writing; need not be verified ro"nd!= 1. 1ompetency of alleged incompetent; 2. Hnsuitability of the person for whom letters are prayed. -f the interested person is a creditor and mortgagee of the estate of the minor, he cannot be appointed guardian of the person and property of the latter. 0o man can serve two masters (-architorena *. Sotelo, -.R. #o. &95/64/, #o*em2er 13, 105'). SECTION C. )EARIN AND ORDER FOR LETTERS TO ISSUE At the hearing( 1. )he alleged incompetent must be present if able to attend; 2. -t must be shown that the re'uired notice has been given. SECTION 8. ;)EN AND )O; UARDIAN FOR NON( RESIDENT APPOINTED9 NOTICE Any relative, friend or anyone interested in the estate of a person liable to be put under guardianship may file a petition for guardianship over the property of such person. 0otice shall be given through publication or otherwise. Ancillar. g"ardian!%ip Ancillary guardianship refers to the guardianship in a state other than that in which guardianship is originally granted (3errera, p. '/4). SECTION 3. PARENTS AS UARDIANS )his provision may be deemed to have been modified by the provisions of the Aamily 1ode on 5uardianship particularly Articles 22 and 22% (3errera, p. '/6). SECTION 7. SER+ICE OF JUD MENT 1ivil +egistrar of the place where the minor or incompetent resides or where the property is situated shall be served with a copy of the 7udgment.

Inco#pe$en$ includes= 'CLeP DUN* 1. )hose suffering from penalty of civil interdiction; 2. Gospitali&ed lepers; 3. Prodigals; No$e= A prodigal is synonymous to a spendthrift or a person who by e,cessive drinking, gaming, idleness or debauchery of any kind shall so spend, waste or lessen his estate as to e,pose himself or his family to want or suffering or e,pose the town to charge or e,pense for the support of himself or his family ($7clopedic &a" 1ictionar7, 611). 4. Deaf and dumb who are unable to read and write; . )hose of "nsound mind though they may have lucid intervals; !. 2ersons not of unsound mind but by reason of age, disease, weak mind and other similar causes, cannot, without outside aid, take care of themselves and manage their property. SECTION 4. TRANSFER OF +ENUE

R ULE !3 A PPOINTM ENT OF G UARDIANS

SECTION 1. ;)O MA- PETITION FOR APPOINTMENT OF UARDIAN FOR RESIDENT 'AFOD* 1. Any relative; 2. Friend; or 3. Other person on behalf of the resident incompetent who has no parents or lawful guardian; or 4. )he Director of Gealth in favor of an insane person who should be hospitali&ed or in favor of an isolated leper. SECTION ,. CONTENTS OF PETITION 1. )he 7urisdictional facts; 2. )he incompetency rendering the appointment necessary or convenient; 3. )he names, ages, and residences of the relatives of the incompetent, and of the persons having him in their care; 4. )he probable value and character of his estate; and . )he name of the person for whom letters of guardianship are prayed. SECTION 4. COURT TO SET TIME FOR )EARIN . NOTICE T)EREOF To 0%o# no$ice !er/ed= 1. 2ersons mentioned in the petition residing in the 2hilippines;

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San Beda College of Law 2010 Centralized Bar Operations the payment of a legacy or distributive share to the guardian when there is any e,press statutory re'uirement to that effect (3errera, p.'63).

R ULE !4 B ONDS OF G UARDIANS

SECTION 1. BOND TO BE I+EN BEFORE ISSUANCE OF LETTERS. AMOUNT. CONDITIONS ;efore an appointed guardian enters upon the e,ecution of his trust, he shall give a 1ond. Condi$ion!= 'IFAP* 1. )o make and return to the court, within 3 months, a true and complete inventory of all the estate of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him; 2. )o &aithfully e,ecute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward; 3. )o render a true and 7ust account of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs; and at the e,piration of his trust to settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; 4. )o perform all orders of the court by him to be performed. P"rpo!e o& $%e 1ond= Aor the protection of the property of the minor or incompetent to the end that he may be assured of an honest administration of his funds (3errera, p. '6'). Nece!!i$. o& $%e 1ond= 4hen re'uired by statutes to give a bond, no person can 'ualify and act as guardian without complying with this condition precedent (3errera, p. '6'). Ti#e 0%en 1ond $a>e! e&&ec$= At the time of appointment notwithstanding the bond being filed later (3errera, p. '6'). SECTION ,. ;)EN NE; BOND MA- BE REEUIRED AND OLD SURETIES DISC)AR ED A new bond may be re'uired when the guardian is about to receive funds not in contemplation when the original bond was e,ecuted and should be given as a condition of

SECTION 4. BONDS TO BE FILED. ACTIONS T)EREON -n case of breach of the bond<s conditions, the bond may be prosecuted in the same proceeding or in a separate action, for the use and benefit of the ward or of any person legally interested in the estate. )he bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. )he mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian >-uerrero *. Deran, -.R. #o. &95606, ,arch 10, 10(0).

R ULE !5 S ELLING AND E NCUMBERING P ROPERTY OF W ARD

SECTION 1. PETITION OF UARDIAN FOR LEA+E TO SELL OR ENCUMBER ESTATE A. ro"nd! 3% 4hen the income of estate is insufficient to maintain the ward and his family or; 4% 4hen it appears that it is for the benefit of the ward. ;. Re@"ire#en$! 1. 2etition must be verified; 2. 0otice must be given to the ne,t of kin; and 3. Gearing so that they may show cause why petition should not be granted. *ale of the ward<s realty by the guardian without authority from the court is void. Hnder the law, a parent acting merely as legal administrator of the property of his@her children does not have the power to dispose of, or alienate, the property of said minor without 7udicial approval (&indain *. $ourt o+ Appeals, -.R. #o. 0.3(., August '(, 100'). Aor the sale or encumbrance of the property, a verified petition is re'uired (Sec 1 o+ this Rule), but no such verification is re'uired for that purpose with respect to the estate of a decedent (Secs 1 and 5, Rule 60) and a mere motion therein will suffice. SECTION ,. ORDER TO S)O; CAUSE T)EREUPON )he court shall make an order directing the ne,t of kin, and all persons interested in the estate, to show cause why the petition under this +ule must not be granted.

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San Beda College of Law 2010 Centralized Bar Operations )he authority to sell or encumber shall not e,tend beyond 1 year unless renewed by the court. Ne?$ o& Fin 0e,t of kin does not mean the ne,t of kindred but pertains to those relatives who are entitled to share in the estate of the ward under the 8aw on -ntestate *uccession including those who inherit per stirpes or by right of representation (&ope@ *. Deodoro, Sr., -.R. #o. &93(/1, ,a7 '0, 10.(). No$e= 0otice to ne,t of kin and interested persons is 2"ri!dic$ional. Aailure to notify the ne,t of kin shall be a ground for dismissal of the petition under this +ule (Singco *. &onga, -.R. #o. &9'/04', Fe2ruar7 15, 10'6). Gowever, notice is not necessary where the ne,t of kin to the ward and all persons interested in the estate are her mother and guardian, uncles and aunts who agreed to make the transfer of their respective shares in the property to the corporation to be organi&ed (Pardo de Da*era *. El 3ogar Filipino, ;nc. and ,agdalena Estate, -.R. #o. &9.603, Fe2ruar7 '6, 10.4). SECTION 4. )EARIN COSTS ON RETURN OF ORDER. Appeal is the proper remedy against an order of the court authori&ing the sale of the ward<s property (&ope@ *. Deodoro, -.R. #o. &9 3(/1, ,a7 '0, 10.(). No$e= )here being a presumption that the sale of the ward<s estate is valid, it cannot be attacked collaterally in the registration proceedings. A separate action to avoid or rescind the sale on the grounds specified by law should be filed >,argate *. Ra2acal, -.R. #o. &9153(', April 3(, 1043). SECTION C. COURT MA- ORDER IN+ESTMENT OF PROCEEDS AND DIRECT MANA EMENT OF ESTATE *ections 1 J 2 of this +ule relate only to the investment of proceeds from the sale or encumbrance of the estate and investment of other funds is covered by *ection of this +ule. 4hile *ection re'uires 7udicial authority in order that a guardian may invest the ward<s money, it does not provide that said authority must always be either prior to or e,pressed (Philippine Drust $o. *. Ballesteros, -.R. #o. &96.3', =cto2er 11, 10./).

SECTION :. CONTENTS OF ORDER FOR SALE OR ENCUMBRANCE9 AND )O; LON EFFECTI+E )he order of sale must specify the grounds. eneral R"le= *ale must first be confirmed by the court, and that until such confirmation, not even e'uitable title passes (3errera, p. '60). Exception= )he court<s order e,pressly authori&ed the guardian to e,ecute and deliver to the purchaser definitely named, a deed of conveyance to a parcel of land specifically described at a price already fi,ed and it was intended to be the approval itself of the sale that was already perfected or agreed upon by the seller and the buyers, needing only a 7udicial go3ahead signal to reduce the agreement to the statutory form and it had been made without departure from the terms of the order (Soriano, et. al. *. &atono, -.R. #o. &935(6, 1ecem2er '3, 10.(). D"ra$ion o& $%e order o& !ale and enc"#1rance o& proper$.= 4ithin 1 year from the granting of the order. -t is presumed that if the property was not sold within 1 year, the ward has sufficient income. )he guardian, among others, cannot ac'uire by purchase even at a public or 7udicial auction, either in person or through the mediation of another, the property of the person or persons who may be under his guardianship (Art. 1501, #$$).

R ULE !6 G ENERAL P OWERS AND D UTIES OF G UARDIANS

SECTION 1. TO ;)AT UARDIANS)IP S)ALL EATEND 1onflicts regarding the ownership or title to the property in the hands of the guardian in his capacity as such should be litigated in a separate proceeding, the court in guardianship proceeding being solely concerned with the ward<s care and custody and proper administration of his properties >?iloria *. Administrator o+ ?eteran A++airs, -.R. #o. &904'(, <une '6, 10./). SECTION ,. UARDIAN TO PA- DEBTS OF ;ARD Order o& lia1ili$. o& 0ardG! proper$.= 1. 2ersonal estate and income of real estate; 2. +eal estate SECTION 4. UARDIAN TO SETTLE ACCOUNTS9 COLLECT DEBTS AND APPEAR IN ACTIONS FOR ;ARD 9rdinarily, a guardian ad litem has no authority to act or bind a minor in any transaction with regard to his estate, but he can, however, do so with the approval of the court, such as the amicable settlement of a case affecting the

34

San Beda College of Law 2010 Centralized Bar Operations property of the minor, duly approved by the court (Santo 1omingo *. Santo 1omingo, -.R. #o. &91(664, April 16, 10.6). SECTION :. ESTATE TO BE MANA ED FRU ALLAND PROCEEDS APPLIED TO MAINTENANCE OF ;ARD )he guardian is bound to e,ercise such diligence and prudence as reasonable men ordinarily employ in the conduct of their own affairs and will be held liable for any loss which results from his failure to e,ercise such prudence and diligence (3errera, p. 3(1). SECTION C. UARDIAN MA- BE AUT)ORIIED TO JOIN IN PARTITION PROCEEDIN S AFTER )EARIN Re@"i!i$e!= 1. Gearing; 2. 0otice to relatives of the ward; and 3. 1areful investigation as to the necessity and propriety of the proposed action. SECTION 8. PROCEEDIN SUSPECTED OF EMBEIILIN PROPERT- OF ;ARD ;)EN PERSON OR CONCEALIN 3. +ender a verified inventory within 3 months after his appointment and annually thereafter, and upon application of interested persons (Sec. /)> 4. )o have the care and custody of the person of the ward, and the management of his estate, or the management of the estate only, as the case may be (Sec. 1)> . +ender to court for its approval an accounting of the property for 1 year from his appointment and every year thereafter, and upon application of interested persons (Sec. 6)> and !. Pay the debts of the ward (Sec. '). A guardian, 7ust like a trustee, is prohibited under Article "3! of the 1ivil 1ode from making a donation of the properties entrusted to him (Araneta *. Pere@, -.R. #o. &9 166/', <ul7 1., 1044).

R ULE !7 T ERMINAT ION OF G UARDIANS HIP

SECTION 1. PETITION T)AT COMPETENC- OF ;ARD BE ADJUD ED9 AND PROCEEDIN S T)EREUPON ;%o #a. &ile= 1. 2erson who has been declared incompetent; 2. Gis guardian; 3. +elative; or 4. Ariend. 2etition shall be verified by oath and shall state that such person is then competent. ro"nd! &or $er#ina$ion= 1. 1ompetency of the ward has been 7udicially determined; 2. 5uardianship is no longer necessary; 3. Beath of guardian; 4. Beath of ward. No$e= 0otice of hearing of the petition is not intended as a personal service process in the sense necessary to give the court 7urisdiction over the ward >;n Re -uardianship o+ ;ncompetent <ose de ;nchausti *. Soler, -.R. #o. &9 1.110, <anuar7 10, 10'(). ;%o #a. oppo!e= 1. 5uardian; 2. +elative of the ward; or 3. Any other person, in the discretion of the court.

P"rpo!e( )o secure evidence from persons suspected of embe&&ling, concealing or conveying any property of the ward so as to enable the guardian to institute the appropriate action to obtain the possession of and secure title to said property >$ui *. Piccio, -.R. #o. &9.131, <ul7 31, 10.'). 9nly in e,treme cases where property clearly belongs to the ward or where his title thereto has been already decided, may the court direct its delivery to the guardian >$ui *. Piccio, supra). SECTION 3. IN+ENTORIES AND ACCOUNTS OF UARDIANS9 AND APPRAISEMENT OF ESTATE SECTION 7. ;)EN UARDIANGS ACCOUNTS PRESENTED FOR SETTLEMENT9 EAPENSES AND COMPENSATION ALLO;ED )he guardian shall be allowed the amount of his reasonable e,penses incurred in the e,ecution of his trust and such compensation for his services, not e,ceeding 1 K of the net income of the ward. eneral po0er! and d"$ie! o& g"ardian! 'MSICAP* 1. Manage the estate of the ward frugally, and apply the proceeds to maintenance of the ward (Sec. 5)> 2. Settle accounts, collect debts and appear in actions for ward (Sec. 3)>

SECTION ,. ;)EN UARDIAN REMO+ED OR ALLO;ED TO RESI N. NE; APPOINTMENT

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San Beda College of Law 2010 Centralized Bar Operations ro"nd! &or re#o/al o& a g"ardian 1. -nsanity; 2. -ncapability or unsuitability to discharge functions; 3. 4astage or mismanagement of the property of the ward; and 4. Aailure to render an account or make a return within 3% days after it was due. )he remedy of a guardian from the order of removal is to appeal >=larte *. EnriCue@, -.R. #o. &914(06, =cto2er 31, 104(). )he guardian may file a petition before the guardianship court for permission to resign is trust, stating the grounds therefore, and accompanied by a report of the state of his account and an offer to settle the account and deliver the estate over the court (3errera, p. 315). SECTION 4. OT)ER TERMINATION OF UARDIANS)IP Coluntary emancipation under the amendments introduced by +.A. 0o. !#%$, is no longer recogni&ed as a ground for the termination of parental authority or guardianship (3errera, p. 31.). SECTION :. RECORD TO BE FEPT B- JUSTICE OF T)E PEACE OR MUNICIPAL JUD E SECTION C. SER+ICE OF JUD MENT E!$a$e<In$e!$a$e Co"r$ Rules /390( *tatute of non3claims 1an pass upon the merits of the claim *ale of personal properties first (Rule 60) ;ond defeats the .petition for authority to *ell/ 2ublication (Rule 60) -ndefinite effectivity of .authority to sell/ :ay appoint a special administrator "ardian!%ip Co"r$ Rules 0'90/ 0o statute of non3claims 1annot pass upon the merits of the claim *ale of personal or real properties first (Rule 0.) ;ond does not defeat the .2etition for Authority to *ell/ 2ersonal notice (Rule 0.) 1 year effectivity of .authority to sell/ 0o such thing as a special guardian >+emedy( Appeal from order appointing the E!$a$e<In$e!$a$e Co"r$ "ardian!%ip Co"r$ guardian?

R ULE

ON

G UARDIANS HIP M INORS

OF

(A.,. #o. (39('9(.9S$, e++ecti*e ,a7 1, '((3) SECTION 1. APPLICABILIT- OF T)E RULE )he +ule applies to petitions for 5uardianship over the person or property, or both of a #inor. )he father and the mother shall 7ointly e,ercise legal guardianship over the person and property of their minor without the necessity of a court appointment. -n such case, this +ule shall be suppletory to the provisions of the Aamily 1ode on 5uardianship. ;%o #a. pe$i$ion 1. Any relative; or 2. 9ther person on behalf of a minor; or 3. )he minor himself if 14 years of age or over; or 4. )he *ecretary of *ocial 4elfare and Bevelopment; and . )he *ecretary of Gealth in case of an insane minor who needs to be hospitali&ed (Sec. '). ;%ere $o &ile pe$i$ion= Aamily 1ourt of the province or the city where the minor actually resides. -f he resides in a foreign country, with the Aamily 1ourt of the 2rovince or city where his property or any part thereof is situated (Sec. 3). )he petition shall be *eri+ied and accompanied by a certi+ication o+ non9+orum shopping (Sec./). ro"nd! o& pe$i$ion 'D S"Re Be!$* 1. Death9 continued absence, or incapacity of his parents; 2. S"spension, termination or deprivation of parental authority; 3. Remarriage of his surviving parent, if the latter is found unsuitable to e,ercise parental authority; 4. 4hen the 1e!$ interests of the minor so re'uire (Sec. 5). Con!idera$ion! in appoin$ing g"ardian! 'MP H FRALA* 1. Moral character; 2. Physical, mental and psychological condition; 3. Financial status; 4. Relationship of trust with the minor; . Availability to e,ercise the powers and duties of a guardian for the full period of the guardianship; !. Lack of conflict of interest with the minor;

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San Beda College of Law 2010 Centralized Bar Operations ". Ability to manage the property of the minor (Sec. .). ;%o #a. 1e appoin$ed g"ardian o& $%e per!on or proper$.9 or 1o$%9 o& a #inor= -n default of parents or a court3appointed guardian, the court may appoint a guardian of a minor, observing as far as practicable, the following order o& pre&erence( ' (BAO* 1. )he surviving grandparent and in case several grandparents survive, the court shall select any of them taking into account all relevant considerations; 2. )he oldest 1rother or sister of the minor o*er t"ent79 one 7ears o+ age, unless unfit or dis'ualified; 3. )he actual custodian of the minor over twenty3one years of age, unless unfit or dis'ualified; and 4. Any other person, who in the sound discretion of the court would serve the best interests of the minor (Sec. 4). Con$en$! o& pe$i$ion 1. )he 7urisdictional facts; 2. )he name, age and residence of the prospective ward; 3. )he ground rendering the appointment necessary or convenient; 4. )he death of the parents of the minor or the termination, deprivation or suspension of their parental authority; . )he remarriage of the minor<s surviving parent; !. )he names, ages, and residences of relatives within the 4th civil degree of minor, and of persons having him in their care and custody; ". )he probable value, character and location of the property of the minor, and the name, age and residence of the person for whom letters of guardianship are prayed (Sec. /). Ti#e and no$ice o& %earing= 0otice must be given to persons named in the petition and to the minor if over 14 years of age (Sec. 6). No$e= 0otice to a minor who is above 14 year old is 7urisdictional. 0on3compliance with this renders the proceedings null and void. Ca!e !$"d. repor$= )he court shall order a social worker to conduct a case study of the minor and all prospective guardians and submit his report and recommendation >3 days before hearing? to the court for its guidance before the scheduled hearing (Sec. 0). Oppo!i$ion $o pe$i$ion= :ust be in writing; need not be verified (Sec. 1(). ro"nd! &or oppo!i$ion= 1. :a7ority of alleged minor; 2. Hnsuitability of the person for whom letters are prayed. Con$en$! o& oppo!i$ion $o $%e pe$i$ion 1. 5round relied upon; 2. 2rayer that the petition be denied; or 3. 2rayer that letters of guardianship issue to himself or to any suitable person named in the opposition. Bond o& g"ardianD a#o"n$ and condi$ion!= ;efore the guardian enters upon the e,ecution of his trust or letters of guardianship he may be re'uired to post a bond in the amount set 27 the court under the following conditions( 1. )o make and return to the court, within three months after the issuance of his letters of guardianship, a true and complete -nventory of all the property, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf; 2. )o faithfully e,ecute the duties of his trust, to manage and dispose of the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education; 3. )o render a true and 7ust account of all the property of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by this rule and such other times as the court directs; and at the e,piration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; and 4. )o perform all orders of the court and such other duties as may be re'uired by law (Sec. 15). Bond o& paren$! a! g"ardian o& $%e proper$. o& $%e #inor= )he parents shall post a bond if the market value of the child<s properties or income e,ceeds 2h2 %,%%% and the bond shall not be less than 1%K of the value of the properties or income (Sec. 14). Pe$i$ion $o !ell or enc"#1er proper$. ro"nd!= 1. 4hen the income of estate is insufficient to maintain and educate ward when a minor; or 2. 4hen it appears that it is for the 2ene+it of the ward. )he authority to sell or encumber shall not e,tend beyond one year, unless renewed by the court (Sec.10). ro"nd! &or re#o/al or re!igna$ion o& g"ardian uardian: 1. ;ecomes insane or otherwise incapable of discharging his trust; 2. -s found thereafter to be unsuitable; 3. Gas wasted or mismanaged the property of the ward;

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San Beda College of Law 2010 Centralized Bar Operations 4. Gas failed to render an account or make a return 3% days after it was due (Sec.'5). No$e= ;efore a motion for removal or resignation may be granted under *ec. 24, the guardian must submit the proper accounting of the property of the ward and the court has to approve the same. ro"nd! &or $er#ina$ion o& g"ardian!%ip 1. )he ward has come of age; or 2. Gas died (Sec. '.). 5uardianship<s termination may be motu proprio or by a verified motion by any person allowed to file a petition for guardianship on the grounds of ma7ority and@or death of the ward >in case of death, notify the court within ten >1%? days?. Inco#pe$en$! ;%o Are No$ Minor! ;%o #a. &ile 1. Any relative; or 1. Any relative; 2. 9ther person on 2. Ariend; or behalf of a minor; or 3. 9ther person on behalf of 3. )he minor himself if 14 the resident incompetent years of age or over; or who has no parents or 4. )he *ecretary of *ocial lawful guardian; or 4elfare and 4. )he Birector of Gealth in Bevelopment A0B by favor of an insane person . )he *ecretary of Gealth who should be in case of an insane hospitali&ed or in favor of minor who needs to be an isolated leper (Sec. 1)> hospitali&ed (Sec.' A, . Anyone interested in the (39('9(.9S$). estate of a non3resident incompetent (Sec. 4). Con$en$! o& Pe$i$ion 1. )he 7urisdictional facts; 1. )he 7urisdictional facts; 2. )he name, age and 2. )he incompetency residence of the rendering the prospective ward; appointment necessary 3. )he ground rendering or convenient; the appointment 3. )he names, ages, and necessary or residences of the convenient; relatives of the 4. )he death of the incompetent, and of parents of the minor or the persons having him the termination, in their care; deprivation or 4. )he probable value suspension of their and character of his parental authority; estate; . )he remarriage of the . )he name of the minor<s surviving person for whom parent; letters of guardianship !. )he names, ages, and are prayed (Sec. ' Minor Minor Inco#pe$en$! ;%o Are No$ Minor! Rule 03).

residences of relative within the 4th civil degree of minor, and of persons having him in their care and custody; ". )he probable value, character and location of the property of the minor; and #. )he name, age and residence of the person for whom letters of guardianship are prayed (Sec. /, A, (39 ('9(.9S$). ro"nd! &or Ter#ina$ion 1. )he ward has come of age; or 2. Gas died (Sec. '., A, (39('9(.9S$).

1. 1ompetency of the ward has been 7udicially determined; 2. 5uardianship is no longer necessary; 3. Beath of guardian; 4. Beath of ward.

No$e= )he petition involving #inor! is re'uired to be *eri+ied and accompanied by certi+ication against +orum shopping while that involving inco#pe$en$ must be *eri+ied onl7. Gowever, no defect in the petition or verification shall render void the issuance of letters of guardianship.

R ULE !8 T RUSTEES
E ? e c " $ o r < A d # i n i !

"ardian

T r " ! $ e e

38

San Beda College of Law 2010 Centralized Bar Operations $ r a $ o r Accounts are not under oath and except for initial and final submission of accounts, they shall be filed only at such times as may be RE!%;RE1 by the court. Appointed by the court to settle estate of decedent. 0ot e,empted from filing bond even if such e,emption is provided in the will >bond is only conditioned upon payment of debts?. *ervices of e,ecutor or administrator is terminated upon payment of debts of the estate and distribution of property to heirs. :ust pay the debts of the estate. Appointed to carry into effect the provisions of a will or written instrument >contractual trust?. :ay be e,empted from filing bond if provided in the will or if beneficiaries re'uested e,emption. )rusteeship is terminated upon turning over the property to beneficiary after e,piration of trust >period may be provided for in the will or trust contract?. 0o obligation to pay debts of beneficiary or trustor.

Appointed as guardian.

Accounts must be under oath and filed annually.

Accounts must be under oath and filed annually.

:ust always file a bond.

1ourt that has 7urisdiction may be :)1 or +)1.

1ourt which has 7urisdiction is RD$ >incom3 petent? or Aamily 1ourt >minors?.

1ourt which has 7urisdiction is RD$ or ,D$ if appointed to carry into effect provisions of a will; if trustee dies, resigns or removed in a contractual trust, +)1 has 7urisdiction in the appointment of new trustee.

5uardianship is terminated upon attainment of age of ma7ority of the minor or upon gaining competency in the case of an incompetent >need court order for the latter?. :ust pay the debts of the ward.

:ay sell, encumber or mortgage property if it is necessary for the purpose of paying debts, e,penses of administration or legacies, or for the preservation of property or if sale will be beneficial to heirs, legatees or devisees (upon application to the court "ith "ritten notice to the heirs). 9rder of sale has no time limit.

Proced"re &or appoin$#en$ o& $r"!$ee! "nder Rule $% :ay sell or encumber property of ward if income of estate is insufficient to maintain ward and his family and educate ward or the sale or encumbrance is for the benefit of ward upon order of the court. Allowance of the instrument creating the trust >2robate of will? :ay sell or encumber property of estate held in trust if necessary or e,pedient upon order of the court. 2etition by the e,ecutor@ administrator or the person appointed as trustee in the instrument Appointment of the trustee by the court 0otice to all interested persons Ailing of bond by the trustee 9rder of sale has no time limit. SECTION 1. ;)ERE TRUSTEE APPOINTED

9rder of sale is valid for only 1 7ear after grant of the same.

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San Beda College of Law 2010 Centralized Bar Operations J"ri!dic$ion= )he +)1 or :)1 in which the will was allowed, if it be a will allowed in the 2hilippines, otherwise by the +)1 of the province in which the property, or some portion thereof, affected by the trust, is situated. A $r"!$ee i! nece!!ar. $o carr. in$o e&&ec$= 1. A will creating a trust but the testator omitted to appoint a trustee in the 2hilippines >Destamentar7 Drust?; and 2. 9ther written instruments where the trustee therein declines, resigns, dies, or is removed before accomplishment of trust ($ontractual Drust). No$e= )his rule applies only to e,press trusts and not to implied trusts which arise by operation of law (Regalado, p. 1.3). SECTION ,. APPOINTMENT AND PO;ERS OF TRUSTEE UNDER ;ILL. EAECUTOR OF FORMER TRUSTEE NEED NOT ADMINISTER TRUST 0o person succeeding to the trust as e,ecutor or administrator of a former trustee shall be re'uired to accept such trust. No$e= 0otice to and consent of the beneficiary are not essential for the creation of the trust >1e &eon *. ,olo9 Pec)son, -.R. #o. &91/6(0, 1ecem2er '0, 104'). )he trustee to be appointed shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. SECTION 4. APPOINTMENT AND PO;ERS OF NE; TRUSTEE UNDER A ;RITTEN INSTRUMENT ;%en a ne0 $r"!$ee appoin$ed= 4hen a trustee under a written instrument declines, resigns, dies or is removed before the ob7ects of the trust are accomplished and no ade'uate provision is made in such instrument supplying the vacancy. SECTION :. PROCEEDIN S ;)ERE TRUSTEE APPOINTED ABROAD 4hen land in the 2hilippines is held in trust for a resident by a trustee who derives his authority from abroad, such trustee must petition the +)1 where the land is situated, otherwise, the trust will be vacant and a new trustee will be appointed. 4hen a trust is created abroad for property in the 2hilippines, 7udicial approval is still needed though the trustor is alive. SECTION C. TRUSTEE MUST FILE BOND 0eglect of trustees to file a bond will be interpreted by the court as resignation or a decline to accept the trust. Gowever, he may be e,empted from bond when re'uested by( 1. )estator; 2. All persons beneficially interested in the trust. 0onetheless, the court may cancel such e,emption anytime. SECTION 8. CONDITIONS INCLUDED IN BOND 'ASIM* 1. )hat he will render upon oath at least once a year until his trust is fulfilled a true account of the property in his hands and of the management and disposition thereof, and such other accounts as the court may order; 2. )hat at the e,piration of his trust he will !ettle his accounts in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled thereto; 3. )hat the trustee will make and return to the court, at such time as it may order, a true inventory of all the estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge; 4. )hat he will #anage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed. 4hen the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory if one has already been filed. SECTION 3. APPRAISAL. COMPENSATION OF TRUSTEE )he compensation of the trustee is that which is provided by the instrument creating the trust. 9therwise, it shall be fi,ed by the court. SECTION 7. REMO+AL OR RESI NATION OF TRUSTEE Re@"i!i$e!= 1. 2etition filed by parties beneficially interested; 2. 0otice to trustee; and 3. Gearing. ;%o #a. pe$i$ion= 2arties beneficially interested. ro"nd!= 1. +emoval appears essential in the interest of petitioners; 2. -nsanity; 3. -ncapability of discharging trust; 4. Hnsuitability.

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San Beda College of Law 2010 Centralized Bar Operations A trustee is at liberty to tender his resignation and apply for his release on the sole ground of unwillingness to act further in the trust. ;ut the acceptance of the resignation of a trustee is not a matter of course; due regard must be had for the interest of the parties to be affected and there must ordinarily be some ground for discharge other than the mere wish of the trustee to be relieved (3errera, p. 5.0). No$e= )he trustee is prohibited from ac'uiring the property whether by purchase, even in a public or 7udicial action, either in person or through the mediation of another. (Art. 1501, #$$) SECTION 5. PROCEEDIN S FOR SALE OR ENCUMBRANCE OF TRUST ESTATE )he +ules on *ale and Encumbrance of )rust Estate shall conform as nearly as may be to the provisions on *ale and Encumbrance by 5uardians. Adoption is strictly personal between the adopter and the adopted (Deotico *. 1el ?al, -.R. #o. &916/.3, ,arch '4, 10.4). Adoption is a privilege, not innate or fundamental, but rather a right created by statute. -t is a privilege which is governed by the state<s determination of what is for the best welfare of the child >&ahum *. Si2ulo, -.R. #o. 153060, <ul7 15, '((3). Financial capaci$.= 4hile petitioner claims that she has the financial support and backing of her children and siblings, the ability to support the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and the latter (&andingin *. Repu2lic o+ the Philippines, -.R. #o. 145056, '/ <une '((4). No$e= 4hen a foreigner who is married to Ailipino citi&en seeks to adopt 7ointly with his@her spouse as relative within the fourth civil degree of consanguinity or affinity of the Ailipino spouse, the Bomestic Adoption Act shall apply. Con!$r"c$ion o& adop$ion !$a$"$e!= All the sections are designed to protect the .best interests/ of the adoptee (3errera, p. 354). Adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration and 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 to allow childless couples or persons to e,perience the 7oys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate ob7ectives of the law (,al)insons *. Agra*a, -.R. #o. &9343(0, #o*em2er '4, 10/3). S"1!e@"en$ la0! 1. 2.B. 0o. !%3, otherwise known as 1hild and Louth 4elfare 1ode, which e,pressly repealed all the 1ivil 1ode provisions on Adoption, as amended by E,ecutive 9rder 0o. $1; 2. +.A. 0o. #%43 on -nter 1ountry Adoption; 3. Aamily 1ode of the 2hilippines which repealed the substantive provisions of 2.B. 0o. !%3 and E.9. 0o. $1;

A DOPTION
Preli#inar. Con!idera$ion! No$e= )he provisions of the +ules of 1ourt on Adoption have been amended by the Bomestic Adoption Act of 1$$# and the -nter3country Adoption Act of 1$$ . *ec. ! of +ule $$ was already amended by Administrative 1ircular 0o. %33%43%4 while *ec. " of +ule $$ was amended by Administrative 1ircular 0o. %23131$3*1. Effective August '', '((', there is a new +ule on Adoption (Section 33, Administrati*e ,atter #o. ('949('9 S$). Na$"re and concep$ o& adop$ion= Adoption is a 7uridical act, a proceeding in rem, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation (3errera, p. 31/). 9nly an adoption made in pursuance with the procedures laid down under A.:. 0o. %23!3%23*1 +ules on Bomestic and -nter31ountry Adoption is valid in this 7urisdiction. Adoption is not an adversarial proceeding. )here is no particular defendant since the proceeding involves the status of a person it being an action in rem (3errera, p. 3'5). P"rpo!e o& adop$ion= )he promotion of the welfare of the child and the enhancement of his opportunities for a useful and happy life, and every intendment is sustained to promote that ob7ective (1aoang *, $ourt o+ Appeals, -.R. #o. &935.46, ,arch '6, 1066).

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San Beda College of Law 2010 Centralized Bar Operations 4. Aamily 1ourts Act of 1$$" establising Aamily 1ourts vested with e,clusive and original 7urisdiction over adoption cases; . +.A. 0o. # 2 otherwise known as Bomestic Adoption Act; and !. -mplementing rules promulgated by the *upreme 1ourt( a. A.:. 0o. %23131$3*1 +e( 2roposed +ule on 1ommitment of 1hildren Effective April 1 , 2%%2; b. A.:. 0o. %23!3%23*1 +ule on Bomestic and -nter3 1ountry Adoption Effective August 22, 2%%2; and c. +ule on 1ustody of :inors and 4rit of 3a2eas $orpus in +elation to 1ustody of :inors Effective :ay 1 , 2%%3. !. At least 1! years older than the adoptee. Except= when the adopter is the adoptee<s biological parent or the spouse of the adoptee<s parent; and ". -n a position to support and care for his@her children in keeping with the means of the family. ;. An. alien po!!e!!ing $%e !a#e @"ali&ica$ion! a! a1o/e, 2rovided( 1. )hat his country has diplomatic relations with the 2hilippines; 2. )hat he has been living in the 2hilippines for at least 3 continuous years prior to the filing of the application for adoption; 3. :aintains residence until the adoption decree is entered; 4. 1ertified by his diplomatic or consular office or any appropriate government agency to have legal capacity to adopt by his country; and . )hat his government allows the adoptee to enter his country as his adopted child. )he re'uirements on residency and certification of the alien<s 'ualification to adopt in his country may be waived for the following( a. A former Ailipino citi&en who seeks to adopt a relative within the 4th degree of consanguinity or affinity; or b. 9ne who seeks to adopt the legitimate child of his Ailipino spouse; or c. 9ne who is married to a Ailipino citi&en and seeks to adopt 7ointly with his spouse a relative within the 4th degree of consanguinity or affinity of the Ailipino spouse. 1.)he g"ardian 0i$% re!pec$ $o $%e 0ard after the termination of the guardianship and clearance of his financial accountabilities. ;%o #a. 1e adop$ed (&ec' *) 1. Any person below 1# years of age who has been 7udicially declared available for adoption or voluntarily committed to B*4B; 2. )he legitimate child of one spouse, by the other spouse; 3. An illegitimate child, by a 'ualified adopter to raise the status of the former to that of legitimacy; 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; . A child whose adoption has been previously rescinded; !. A child whose biological or adoptive parents have died, 2ut no proceedings shall 2e initiated "ithin 4 months +rom the time o+ death o+ said parents> ". A child not otherwise dis'ualified by law or these rules. JA c%ild legall. a/aila1le &or adop$ionK -t refers to a child who has been voluntarily or involuntarily committed to the B*4B or to a duly licensed and

R ULES

ON D OMESTIC A DOPTION (Secs. 19'., A.,. #o. ('949(')

Proced"re &or Do#e!$ic Adop$ion "nder AM(6,(8(6,( SC 2etition for Bomestic Adoption 9rder of Gearing by the court 1hild and Gome *tudy +eports by the *ocial 4orker Gearing on the 2etition for Adoption *upervised )rial 1ustody Adoption Becree issued by the court ;%o #a. adop$ (&ec'() A. An. Filipino Ci$iLen 6 1. 9f legal age; 2. -n possession of full civil capacity and legal rights; 3. 9f good moral character; 4. Gas not been convicted of any crime involving moral turpitude; . Emotionally and psychologically capable of caring for children;

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San Beda College of Law 2010 Centralized Bar Operations accredited child3placing or child caring agency, freed of the parental authority of his biological parents, or in case or rescission of adoption, his guardian or adopter@s (Sec. 3). T0o 0a.! $o co##i$ a c%ild 1. Ad#ini!$ra$i/e<+ol"n$ar.= -n this case, the parent or guardian of the child voluntarily committed him to the B*4B or any duly licensed child placement or child caring agency. )he child must be surrendered in writing. *uch written instrument must be notari&ed and signed in the presence of an authori&ed representative of the department after counseling has been made to encourage the parents to keep the child (Sec. ., A, ('919109S$). 2. J"dicial<In/ol"n$ar.= Aollow the procedure in 2roposed +ule on 1ommitment of 1hildren (A, ('919 109S$) under special laws. Join$ adop$ion o& !po"!e! eneral r"le= Gusband and wife shall 7ointly adopt (Art. 16., Famil7 $ode). Exceptions: 1. -f one spouse seeks to adopt the legitimate child of the other; 2. -f one spouse seeks to adopt his own illegitimate son@daughter, provided that the other spouse has signified his consent thereto; 3. -f the spouses are legally separated from each other (Sec. 5, A.,. ('949('9S$). )his is in consonance with the concept of 7oint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level if illegitimate child, it is but natural to re'uire both the spouses to adopt 7ointly (Repu2lic *. Doledano, -.R. #o. 055/, <une 6, 1005). +en"e (&ec'+) Aamily 1ourt where the prospective adoptive parents reside. Con$en$! o& $%e pe$i$ion (&ec'7) A. I& $%e adop$er i! a Filipino ci$iLen9 $%e pe$i$ion !%all allege $%e &ollo0ing= 1. )he 7urisdictional facts; 2. )hat the petitioner is of legal age, in possession of full civil capacity and legal rights; is of good moral character; has not been convicted of any crime involving moral turpitude; is emotionally and psychologically capable of caring for children; is at least 1! years older than the adoptee, unless the adopter is the biological parent of the adoptee or is the spouse of the adoptee<s parent; and is in a position to support and care for his children in keeping with the means of the family and has undergone pre3adoption services as re'uired by Section 5 o+ R.A. #o. 6..'. ;. I& $%e adop$er i! an alien9 $%e pe$i$ion !%all allege $%e &ollo0ing= 1. )he 7urisdictional facts; 2. *ub3paragraph A.2 above; 3. )hat his country has diplomatic relations with the +epublic of the 2hilippines; 4. )hat 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 . )hat he has been living in the 2hilippines 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. )he re'uirements of certification of the alien<s 'ualification to adopt in his country and of residency may be waived if the alien( a. -s a former Ailipino citi&en who seeks to adopt a relative within the fourth degree of consanguinity or affinity; or b. *eeks to adopt the legitimate child of his Ailipino spouse; or c. -s married to a Ailipino citi&en and seeks to adopt 7ointly with his spouse a relative within the fourth degree of consanguinity or affinity of the Ailipino spouse. 1. I& $%e adopter is the le!al !uardian o& $%e adop$ee= )he petition shall allege that guardianship had been terminated and the guardian had cleared his financial accountabilities. B. I& $%e adopter is married9 $%e !po"!e !%all 1e a co( pe$i$ioner &or 2oin$ adop$ion except i&= 1. 9ne spouse seeks to adopt the legitimate child of the other; or 2. 9ne spouse seeks to adopt his own illegitimate child and the other spouse signified written consent thereto; or 3. )he spouses are legally separated from each other. E. I& $%e adoptee is a foundlin!= )he 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; se,, name and citi&enship of adoptive mother and father, and the date and place of their marriage. A. I& $%e petition prays for a chan!e of name= -t shall also state the cause or reason for the change of name.

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San Beda College of Law 2010 Centralized Bar Operations All pe$i$ion! !%all allege= 1. )he 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. )hat the adoptee is not dis'ualified by law to be adopted; 3. )he probable value and character of the estate of the adoptee; 4. )he first name, surname or names by which the adoptee is to be known and registered in the 1ivil +egistry. )he petition shall be /eri&ied with a certificate of non3 forum shopping and speci+icall7 state at the heading o+ the initiator7 pleading whether the petition contains an application for a change of name, rectification of simulated birth, voluntary or involuntary commitment of children, or declaration of child as abandoned, dependent or neglected. Rec$i&ica$ion o& !i#"la$ed 1ir$% -t shall allege that( 1. 2etitioner is applying for rectification of a simulated birth; 2. )he simulation of birth was made prior to the date of effectivity of +.A. 0o. # 2, and the application for rectification of the birth registration and the petition for adoption were filed within five years from said date; 3. )he petitioner made the simulation of birth for the best interests of the adoptee; and 4. )he adoptee has been consistently considered and treated by petitioner as his own child (Sec.6). Adop$ion o& a &o"ndling9 an a1andoned9 dependen$ or neglec$ed c%ild )he petition shall allege( 1. )he facts showing that the child is a foundling, abandoned, dependent or neglected; 2. )he names of the parents, if known, and their residence. -f the child has no known or living parents, then the name and residence of the guardian, if any; 3. )he name of the duly licensed child3placement agency or individual under whose care the child is in custody; and 4. )hat the Bepartment, child3placement or child3caring agency is authori&ed to give its consent (Sec. 0). A1andon#en$ -n its ordinary sense, it means to forsake entirely, to renounce utterly (3errera, p. 3.1). -n reference to abandonment of a child by his parent, the act of abandonment imports .any conduct of the parent which evinces a settled purpose to forego all parental duties and relin'uish all parental claims to the child./ -t means .neglect or refusal to perform the natural and legal obligations of care and support, which parents owe their children/ ($ang *. $ourt o+ Appeals, -.R. #o. 1(.3(6, Septem2er '., 1006). C%ange o& na#e= )he present +ule on Bomestic Adoption allows the petition to include an application for change of name (Sec. 1(). )he title or caption must contain; 1. )he registered name of the child; 2. Aliases or other names by which the child has been known; and 3. )he full name by which the child is to be known. Anne?e! $o $%e pe$i$ion A.;irth, baptismal or foundling certificate, as the case may be, and school records showing the name, age and residence of the adoptee; ;.Affidavit of consent of the following( 1. )he adoptee, if 1% years of age or over; 2. )he biological parents of the child, if known, or the legal guardian, or the child3placement agency, child3 caring agency, or the proper government instrumentality which has legal custody of the child; 3. )he legitimate and adopted children of the adopter and of the adoptee, if any, who are 1% years of age or over; 4. )he illegitimate children of the adopter living with him who are 1% years of age or over; and . )he spouse, if any, of the adopter or adoptee

(Sec.11).
Paren$al con!en$ 2arental consent re'uired by law in adoption refers to parents who have not abandoned their child. Accordingly, one whom such child was given by his mother, who does not wish to be identified, is considered the guardian of the child and can give valid consent to the child<s adoption, as said child is considered as abandoned (1uncan *. $F; Ri@al, -.R. #o. &93(./4, Fe2ruar7 1(, 10/4). 0evertheless, the re'uirement of written consent can be dispensed with if the parent has abandoned the child or that such parent is insane or hopelessly intemperate, provided that sufficient facts are alleged in the petition in order to warrant e,emption ($ang *. $ourt o+ Appeals, supra). 1.1hild study report on the adoptee and his biological parents; B.-f the petitioner is an alien, certification by his diplomatic or consular office or any appropriate government

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San Beda College of Law 2010 Centralized Bar Operations 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 e,empted under &ection ((,)> E.Gome study report on the adopters. -f the adopter is an alien or residing abroad but 'ualified to adopt, the home study report by a foreign adoption agency duly accredited by the -nter31ountry Adoption ;oard; and A.Becree of annulment, nullity or legal separation of the adopter as well as that of the biological parents of the adoptee, if any. Proced"re A. Order o& %earing 1. -t must be published at least once a week for 3 !"cce!!i/e 0ee>!; 2. At the discretion of the court, copies of the order of hearing shall be furnished to the office of the *olicitor 5eneral. )hrough the provincial or city prosecutor, the B*4B and the biological parents of the adoptee, i& >no0n; 3. -f a change in the name of the adoptee is prayed for in the petition, notice to the *olicitor 5eneral shall be #anda$or.; 4. -f the petition and attachments are sufficient in form and substance, the court shall issue an order (Sec.1'). Con$en$! o& order 1. Adoptee<s registered name in the birth certificate, and the names by which the adoptee has been known >to be stated in the caption?; 2. 2etition<s purpose; 3. 1omplete name which the adoptee will use if the petition is granted; 4. Gearing<s date and place of hearing >within ! months from the date of the order<s issuance? . Birective to the social worker to prepare and submit child and home study reports before the hearing, if such reports were not attached to the petition due to unavailability at the time of the filing; and !. Birective to the social worker to conduct counseling sessions with the biological parents and to submit a report before the hearing (Sec. 1'). )he necessary 7urisdictional re'uirements should be indicated in the petition for adoption. )hus, the name of the person to be adopted is that appearing in the civil registry and the court does not ac'uire 7urisdiction if a different name is carried in the notice of publication >$ru@ *. Repu2lic o+ the Philippines, -.R. #o. &9'(0'/, <ul7 '4, 1044?. Role o& $%e Solici$or eneral= 4hen the petition includes a prayer for change of name, notice to the *olicitor 5eneral is mandatory to protect the interests of the *tate. 9n other matters, the courts are given discretion to decide whether such notice should be given (3errera, p. 35/). ;. C%ild M )o#e S$"d. Repor$! 6 )he social worker verifies with the 1ivil +egistry the real identity and the name of adoptee and the fact that he is legally available for adoption. -f the adoptee<s birth was not registered, the social worker shall register the adoptee and secure a certificate of foundling or late registration (Sec.13). )he social worker may make recommendations to the court if he finds some grounds to deny the petition. )he social worker shall establish( 1. )he child is legally available for adoption; 2. )he documents in support thereof are valid and authentic; 3. )he adopter has sincere intentions towards the adoptee; 4. )he adoption shall inure to the best interests of the child. -n case of alien adopter, the home study report must show( 1. Adopter<s legal capacity to adopt; 2. Gis government allows the adoptee to enter his country as his adopted child in the absence of the certification re'uired under *ec. ">b?, +.A. 0o. # 2. 1. )earing 6 Gearing is to be held within ! months from the date of issuance of the order (Sec.15). Except= -n case of application +or change o+ name which hearing must not be within 4 months after last publication nor within 3% days prior to election. )he petitioner and the adoptee must personally appear and the former must testify in court. B. S"per/i!ed Trial C"!$od. 'STC* 6 Be+ore issuance o+ decree o+ adoption the court shall give the adopter trial custody of the adoptee for at least ! months (Sec.1.). Ra$io= -n order for the parties to ad7ust psychologically and emotionally with each other and to establish a bonding relationship.

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San Beda College of Law 2010 Centralized Bar Operations No$e= 1ourt may reduce or e,empt parties from *upervised )rial 1ustody, if it finds that the same shall 2e for the best interest of the adoptee. )he trial custody shall be monitored by the social worker who submitted and prepared the case studies. eneral r"le= Alien adopter must complete the ! months *upervised )rial 1ustody. Exception= *ame as e,emptions from re'uirements of residency and certification( 1. A former Ailipino citi&en who seeks to adopt a relative within the 4th degree; 2. 9ne who seeks to adopt the legitimate child of his Ailipino spouse; 3. 9ne who is married to a Ailipino citi&en and seeks to adopt 7ointly with his spouse the latter<s relative within the 4th degree. Te#porar. Paren$al A"$%ori$.= -t is provisionally vested in the adopting parents during the period of trial custody, before the issuance of a decree of adoption, precisely because the adopting parents are given actual custody of the child during such trial period (3errera, p. 3.4). Gowever, where the trial custody had not begun or had already been completed at the time of Cuasi9delict committed by a child to be adopted, the adopting parents cannot assume any liability therefor. )he natural parents should be 7oined as indispensable parties to the suit for damages (Damargo *. $ourt o+ Appeals, -.R. #o. 6(55, <une 3, 100'). -f the child to be adopted is below " years of age and is placed with the prospective adopter through a B*4B pre3 adoption placement authority, the court shall order that the prospective adopter shall en7oy all the benefits to which the biological parent is entitled from the date the adoptee is placed with him. )he social worker shall submit to the court a report on the result of the trial custody within 2 weeks after its termination. E. Decree o& adop$ion 6 -f the court is convinced from the trial custody report and the evidence presented, that the adoption shall redound to the best interest of the child, an adoption decree shall be issued (Sec.14). )he decree of adoption shall take effect as of the date of filing of the original petition. Con$en$! o& $%e adop$ion decree 1. )he name by which the child is to be known; 2. 9rder to the 1lerk of 1ourt to issue to the adopter a certificate of finality upon e,piration of the 1 3day reglementary period within which to appeal; 3. 9rder to the adopter to submit a certified true copy of the decree of adoption and the certificate of finality to the 1ivil +egistrar where the child was originally registered within 3% days from receipt of the certificate of finality; 4. -n case of change of name, the decree shall be submitted to the 1ivil +egistrar where the court issuing the same is situated; . 9rder the 1ivil +egistrar( a. )o annotate on the adoptee<s original birth certificate the decree of adoption within 3% days from receipt of certificate of finality; b. )o issue new birth certificate which shall not bear any notation that it is new or amended certificate which shall allow( registry number, date of registration, name of child, se,, date of birth, place of birth, name and citi&enship of adoptive parents and the date and place of their marriage, if applicable; c. )o seal the original birth certificate in the civil registry records which can be opened only upon the order of the court which issued the decree of adoption; d. )o submit to the court issuing the decree of adoption proof of compliance with all the foregoing within 3% days from date of receipt of the decree. -n case of change of name, the decree shall be submitted to the 1ivil +egistrar where the court issuing the same is situated. An amended birth certificate shall be issued. )he original birth certificate shall be stamped .cancelled/ and shall be sealed in the 1ivil +egistry records. Boo> o& adop$ion!( All matters relative to adoption and all incidents arising after the issuance of the decree shall be recorded in the book of adoption kept by the clerk of court of the Aamily 1ourt (Sec. 1/). Con&iden$iali$. o& proceeding! and record! eneral R"le= After compliance with 7urisdictional re'uirements, all adoption hearings shall be confidential and shall not be open to the public. All related records shall be kept strictly confidential (Sec. 16). Exception= Aor security reasons or for the best interest of the child, the 1ourt may, upon meritorious grounds allow the release of the information with restrictions, if necessary (3errera, p. 356). E&&ec$! o& adop$ion

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San Beda College of Law 2010 Centralized Bar Operations 1. Adopter will e,ercise parental authorit7; 2. All legal ties between biological parents and the adoptee shall be severed, except when biological parent is spouse of adopter; 3. Adoptee shall be considered legitimate child of adopter for all intents and purposes; 4. Adopters shall have reciprocal rights of succession without distinction from legitimate filiation. )he decree of adoption shall have a retroactive effect from the time of the petition. .-t is a settled rule that adoption statutes, being human and salutary, should be liberally construed to carry out the beneficent purposes of adoption. , , ,. Gence, since there is no law prohibiting an illegitimate child adopted by her natural father, , , ,, to use, as middle name her mother<s surname, we find no reason why she should not be allowed to do so/ (;n Re Adoption o+ Stephanie #ath7 -arcia, -.R. #o. 156311, ,arch 31, '((.). ;%o #a. re!cind $%e adop$ionB )he adopter cannot rescind the adoption, only the adoptee may rescind within years from reaching the age of ma7ority or after recovery from incompetency. *uch a petition for rescission shall be filed in the Aamily 1ourt where the adoptee resides. -n case of a minor, he shall be assisted by a social work from B*4B or by the minor<s guardian, if he is over 1# years of age but is incapacitated. )he adopter may not rescind the adoption; however, he may disinherit the adopted child (Art. 010, $i*il $ode). ro"nd! &or re!ci!!ion (&ec' -$) 1. +epeated physical and verbal maltreatment despite having undergone counseling; 2. Attempt on the adoptee<s life; 3. *e,ual assault or violence; 4. Abandonment or failure to comply with parental obligations. Order $o an!0er= )he court shall order the adverse party to file an answer within 1 days from the receipt thereof (Sec. ''). J"dg#en$= -f the court finds that the petition<s allegations are true, it shall order the rescission of adoption (Sec. '3). )he court shall order that( 1. )he biological parents< parental authority, or the B*4B<s legal custody, shall be restored if the adoptee is still a minor or incapacitated; 2. )he reciprocal rights and obligations of the adopter and the adoptee shall be e,tinguished; 3. )he successional rights shall revert to its status prior to adoption, as of the date of 7udgment of 7udicial rescission. Cested rights ac'uired prior to 7udicial rescission shall be respected; 4. )he adoptee shall use the name stated in his original birth@foundling certificate; . )he 1ivil +egistrar where the adoption decree was registered shall cancel the new birth certificate of the adoptee and reinstate his original birth@foundling certificate. Ser/ice o& 2"dg#en$ 6 A certified true copy of the 7udgment and a certificate of finality shall be served by the petitioner upon the 1ivil +egistrar within 3% days from receipt of the certificate of finality. )he 1ivil +egistrar shall enter the rescission decree in the register and submit proof of compliance to the court within 3% days from receipt of the decree (Sec. '5).

I NTER $C OUNTRY A DOPTION

O12ec$i/e! 1. )o consider inter3country adoption as an alternative means of child care, if the child cannot be placed in a foster@adoptive family or cannot be cared for in the 2hilippines; 2. )o ensure that the child en7oys the same protection accorded to children in domestic adoption; 3. )o ensure that the placement does not result in improper financial gain for those involved (Sec. '/). ;%ere $o &ile pe$i$ion 1. A verified petition to adopt a Ailipino child may be filed by a foreign national or Ailipino citi&en permanently residing abroad with the Aamily 1ourt having 7urisdiction over the place where the child resides or may be found; 2. -t may be filed directly with the ;nter9$ountr7 Adoption Board (Sec. '6). ;%o #a. adop$= 1. Any alien or Ailipino citi&en permanently residing abroad who is at least twenty3seven >2"? years of age; 2. 9ther re'uirements are the same as with +.A. 0o. # 2.

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San Beda College of Law 2010 Centralized Bar Operations ;%o #a. 1e adop$ed= 9nly a child legally available for domestic adoption may be the sub7ect of inter3country adoption (Sec.'0). A child under the -nter31ountry Adoption Act is defined as any person 2elo" +i+teen (1.) 7ears o+ age. )he ;oard shall ensure that all possibilities for adoption of the child under the Aamily 1ode have been e,hausted and that inter3country adoption is in the best interest of the child (Section /, R.A. #o. 6(53). Con$en$! o& pe$i$ion Pe$i$ioner #"!$ allege( 1. Gis age and the age of the child to be adopted, showing that he is at least twenty3seven >2"? years of age and at least si,teen >1!? years older than the child to be adopted at the time of application, unless the petitioner is the parent by nature of the child to be adopted or the spouse of such parent, in which case the age difference does not apply; 2. -f married, the name of the spouse who must be 7oined as co3petitioner e,cept when the adoptee is a legitimate child of his spouse; 3. )hat he has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his country; 4. )hat he has not been convicted of a crime involving moral turpitude; . )hat he is eligible to adopt under his national law; !. )hat he can provide the proper care and support and instill the necessary moral values and e,ample to all his children, including the child to be adopted; ". )hat he agrees to uphold the basic rights of the child, as embodied under 2hilippine laws and the H.0. 1onvention on the +ights of the 1hild, and to abide by the rules and regulations issued to implement the provisions of +.A. 0o. #%43; #. )hat he comes from a country with which the 2hilippines has diplomatic relations and whose government maintains a similarly authori&ed and accredited agency and that adoption of a Ailipino child is allowed under his national laws; and $. )hat he possesses all the 'ualifications and none of the dis'ualifications provided in this +ule, in +.A. 0o. #%43 and in all other applicable 2hilippine laws (Sec. 3(). Anne?e! = )he following must be in writing and officially translated in English( 1. Bir$% cer$i&ica$e of petitioner; 2. Marriage con$rac$, if married, and, if applicable, the divorce decree, or 7udgment dissolving the marriage; 3. S0orn !$a$e#en$ o& con!en$ of petitioner<s biological or adopted children above ten >1%? years of age; 4. P%.!ical9 #edical and p!.c%ological e/al"a$ion of the petitioner certified by a duly licensed physician and psychologist; . Inco#e $a? re$"rn! or any authentic document showing the current financial capability of the petitioner; !. Police clearance of petitioner issued within si, >!? months before the filing of the petitioner; ". C%arac$er re&erence from the local church@minister, the petitioner<s employer and a member of the immediate community who have known the petitioner for at least five > ? years; #. F"ll 1od. po!$card(!iLe pic$"re! of the petitioner and his immediate family taken at least si, >!? months before the filing of the petition (Sec.31). No$e= -tems (.) to (/) are not applicable in a domestic adoption. F"nc$ion! o& $%e RTC= )he +egional )rial 1ourt, after finding the petition >in case of foreigners who file a petition for adoption in the 2hilippines under the Bomestic Adoption Act of 1$$# otherwise known as +A # 2? to be sufficient in form and substance and a proper case for inter3country adoption, shall immediatel7 transmit the petition to the Board +or appropriate action (Sec. 3( o+ Amended ;mplementing Rules And Regulations =n ;nter9 $ountr7 Adoption or R.A. #o. 6(53). An adoption created under the law of a foreign country is entitled to registration in the corresponding civil register of the 2hilippines. )he effects of such adoption shall be governed by the law of the 2hilippines (,arcaida *. Aglu2at, -.R. #o. &9'5((4, #o*em2er '., 104/). JBe!$ in$ere!$ o& $%e #inorK !$andard .;est interest of the minor/ standard refers to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. -t also means the least detrimental available alternative for safeguarding the growth and development of the minor (Sec. 15 A.,. #o. (39(59(59S$ '((39(59''). Do#e!$ic Adop$ion J"dicial Adop$ion +.A. 0o. # 2 >Bomestic Adoption Act? amended Arts. 1#331$3 of the Aamily 1ode and is the governing law for Ailipino citi&ens adopting other Ailipinos In$er(Co"n$r. Adop$ion E?$ra2"dicial Adop$ion +.A. 0o. #%43 >-nter3 1ountry Adoption Act? governs the adoption of Ailipinos by foreigners, and is implemented by the -nter3 1ountry Adoption ;oard.

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San Beda College of Law 2010 Centralized Bar Operations Do#e!$ic Adop$ion >whether relatives or strangers? with some e,ceptions. In$er(Co"n$r. Adop$ion Do#e!$ic Adop$ion In$er(Co"n$r. Adop$ion application for adoption and e,ample to all his and maintains such children, including the residence until the child to be adopted; adoption decree is ". Agrees to uphold the entered; basic rights of the child as 4. Ge@she has been embodied under certified by his@her 2hilippine laws, the H0 diplomatic or consular 1onvention on the +ights office or any appropriate of the 1hild, and to abide government agency that by the rules and he@she has the legal regulations issued to capacity to adopt in implement the provisions his@her country; and of this Act; . Gis@her government #. 1omes from a country allows the adoptee to with whom the 2hilippines enter his@her country as has diplomatic relations his@her adopted and whose government son@daughter maintains a similarly authori&ed and accredited +esidency and certification agency and that adoption of the alien<s 'ualification is allowed under his@her to adopt may be waived on national laws; any of the following( $. 2ossesses all the 1. A former Ailipino citi&en 'ualifications and none of who seeks to adopt a the dis'ualifications relative within the 4th civil provided herein and in degree of consanguinity other applicable 2hilippine or affinity; laws. 2. 9ne who seeks to adopt the legitimate son@daughter of his@her Ailipino spouse; 3. -f one spouse seeks to adopt his@her own illegitimate son@daughter( Pro*ided, ho"e*er, that the other spouse has signified his@her consent thereto; or 4. -f the spouse are legally separated from each other -n case husband and wife 7ointly adopt, or one spouse adopts the illegitimate son@daughter of the other, 7oint parental authority shall be e,ercised by the spouses. 5uardian

2rocedure governed by 2rocedure governed by Amended -mplementing A.:. 0o. %23%!3%23*1. +ules and +egulations on -nter 1ountry Adoption Act +escission of adoption is approved Danuary #, 2%%4. no longer allowed under +.A. 0o. # 2. De&ini$ion o& a C%ild A person below 1 years of .1hild/ is a person below age unless sooner 1# years of age. emancipated by law. ;%o #a. Adop$ a. Any Ailipino citi&en; An alien or a Ailipino citi&en b. Any alien possessing the permanently residing abroad same 'ualifications for may file an application for Ailipino nationals; inter3country adoption of a c. 5uardian with respect to Ailipino child. the ward E"ali&ica$ion! Ailipino 1iti&en 1. At least 2" years of age 1. 8egal age; and at least 1! years 2. -n possession of full civil older than the adoptee at capacity and legal rights; the time of the application 3. 5ood moral character; for adoption unless the 4. Gas not been convicted adopter is the parent by of any crime involving nature of the child to be moral turpitude; adopted or the spouse of . Emotionally and such parent; psychologically capable 2. -f married, his@her spouse of caring for children; must 7ointly file for the and adoption; !. At least 1! years older 3. Gas the capacity to act than the adoptee and assume all rights and >waived when the responsibilities of parental adopter is the biological authority under his parent of the adoptee, or national laws, and has is the spouse of the undergone the adoptee<s parent? appropriate counseling from an accredited Alien counselor in his@her 1. *ame as the country; 'ualifications for Ailipino 4. Gas not been convicted of citi&ens; a crime involving moral 2. Gis@her country has turpitude diplomatic relations with . Eligible to adopt under the 2hilippines; his@her national law; 3. Ge@she has been living !. -n a position to provide in the 2hilippines for at the proper care and least 3 continuous years support and to give the prior to the filing of the necessary moral values

49

San Beda College of Law 2010 Centralized Bar Operations Do#e!$ic Adop$ion In$er(Co"n$r. Adop$ion 9nly after the termination of the guardianship and clearance of his@her financial accountabilities ;%o #a. 1e adop$ed 1. Any person below 1# years of age who has been administratively or 7udicially declared available for adoption; 2. 8egitimate son@daughter of one spouse by the other spouse 3. -llegitimate child by a 'ualified adopter to improve his@her status to that of legitimacy; 4. A person of legal age if, prior to the adoption, 9nly a legally free child may said person has been be the sub7ect of inter3 consistently considered country adoption. and treated by the adopter>s? as his@her own child since minority; . A child whose adoption has been previously rescinded; or !. A child whose biological or adoptive parent>s? has died( 2rovided that no proceedings shall be initiated within ! months from the time of death of said parent>s?. ;%ere $o &ile applica$ion Aamily 1ourt of the place +)1 >Aamily 1ourt? having where the adopter resides the 7urisdiction over the child, or with the -nter3 After filing( )he petition 1ountry Adoption ;oard, shall not be set for hearing through an intermediate without a case study report agency, whether by a licensed social governmental or an worker. authori&ed and accredited agency, in the country of the prospective adoptive parents. After filing( >a? if filed in the Aamily 1ourt, it shall determine the sufficiency of petition in respect to form and substance, if sufficient, the petition is transmitted to In$er(Co"n$r. Adop$ion -nter31ountry Adoption ;oard; >b? if petition is filed with -nter31ountry Adoption ;oard, it shall conduct the matching of the applicant with an adoptive child; >c? after matchmaking, the child is personally fetched by the applicant for the trial custody which takes place in the foreign country where the adopter resides. ;%a$ Pe$i$ion &or Adop$ion #a. incl"de 1. 2rayer for change of name; 2. +atification of simulated birth; 9nly petition for adoption 3. Beclaration that the child is a foundling, abandoned, dependent or neglected child. Anne?e! -ncome ta, returns, police -ncome ta, returns, police clearance, character clearance, character reference, family picture, reference, family picture, birth certificate of the birth certificate of the adopter are not reCuired to adopter are reCuired to be be anne,ed in the petition anne,ed in the petition P"1lica$ion 2etition must be published at least once a week for 3 successive weeks in a newspaper of general 0o publication re'uirement circulation in the province or city where the court is situated S"per/i!ed Trial C"!$od. *upervised trial custody *upervised trial custody in period in the 2hilippines for the co"n$r. o& adop$er for at least ! months >1ourt at least ! months and is may reduce period or mandatory before a decree e,empt parties from trial of adoption is issued custody?. >e,penses are borne by the adopter?. -f unsuccessful, the ;oard shall look for another prospective applicant. +epatriation of the child is to be resorted only as a last resort; -f successful, the ;oard shall transmit a written consent for the Do#e!$ic Adop$ion

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San Beda College of Law 2010 Centralized Bar Operations In$er(Co"n$r. Adop$ion adoption to be e,ecuted by the B*4B, and the applicant then files a petition for adoption in his@her country. Decree o& Adop$ion -ssued by the Aamily 1ourt having 7urisdiction over the -ssued by a &oreign co"r$ case. Penal$ie! Any government official, employee or functionary who shall be found guilty of violating any of the *ame provisions of this adoption laws shall automatically suffer suspension until the resolution of the case Do#e!$ic Adop$ion +en"e= Aamily 1ourt of the city or province where the adoptee resides (Sec.'(). No$e= Hnlike in revocation of guardianship, revocation of adoption is a separate proceeding from the adoption. A subse'uent petition for revocation of adoption is neither a continuation of nor an incident in the proceedings for adoption but an entirely new proceeding. -t would appear that this petition may be filed in a court other than the court which issued the adoption (1e la $ru@ *. 1e la $ru@, &910301, '0 Septem2er 1045). Period 0i$%in 0%ic% $o &ile /eri&ied pe$i$ion (&ec',-)= 4ithin LEA+* from reaching the age of ma7ority or after recovery from incompetency. Adverse party shall file his answer within 1 days from receipt of order of court re'uiring him to answer (&ec' ,,)' )he court does not have 7urisdiction to annul after the period fi,ed by the +ule, a decree of adoption. Aor reasons of public order, 7udicial litigations must have an end; hence, decisions must not be changed after the e,piration of the period, it being beyond the 7urisdiction or control of courts (1a7rit *. Piccio, -.R. #o. &9/6.6, =cto2er '4, 10..). E&&ec$! o& J"dg#en$ o& Re!ci!!ion 'PRe+S(NC* 1. Parental authority of biological parent or legal custody of B*4B will be restored; 2. Reciprocal rights of adoptee and adopter will be e,tinguished; 3. +ested rights ac'uired prior to 7udicial rescission shall be respected; 4. Successional rights shall revert to its status prior to adoption, as of the date of 7udgment of 7udicial rescission; . Adoptee shall use the name stated in his original birth or foundling certificate; !. 1ivil registrar will reinstate his original birth or foundling certificate. Agree#en$ 1e$0een $%e adop$er and adop$ed= A subse'uent agreement between them nor between adopter and natural parents cannot by itself effectuate the revocation of adoption (3errera, p. 55'). Colla$eral a$$ac> on $%e /alidi$. o& adop$ion= )he settled rule is that a finding that the re'uisite 7urisdictional fact e,ists, whether erroneous or not, cannot be 'uestioned in a collateral proceeding, for a presumption arises in such cases where the validity of the 7udgment is thus attacked that the necessary 7urisdictional facts were proven (3errera, p. 55').

R ESCISSION

OF

A DOPTION

Hnder the domestic adoption act of 1$$#, the adopter can no longer rescind the adoption. Ge can merely disinherit the adoptee in accordance with the provisions of the 1ivil 1ode >Art. 010, $i*il $ode?. +escission relates only as to the date of the 7udgment. Gence, vested rights prior to rescission should be respected (Sec. '(, Art. ?;, R.A. #o. 6..'). Applica1ili$.= )he grounds for revocation of an adoption refer only to an adoption validly decreed, not to an adoption void from the beginning because tainted with fraud (Ragudo *. Pasno, -.R. #o. &91445', April 16, 104'). ;%o &ile!= 1. Adoptee a. 9ver 1# years of age; or b. -f still a minor with assistance of B*4B. 2. 5uardian or counsel, if over 1# but incapacitated (Sec.10). ro"nd! &or re!ci!!ion 'PASA* 1. +epeated physical violence and verbal maltreatment by the adopter despite having undergone counseling; 2. Attempt on the life of the adoptee; 3. Se,ual assault or violence; or 4. Abandonment or failure to comply with parental obligations (Sec.10)'

R ULE #"#
FOR H OSPIT ALI%AT ION OF I NS ANE P ERSONS

P ROCEEDINGS

51

San Beda College of Law 2010 Centralized Bar Operations Re@"i!i$e!= 1. Birector of Gealth is of the opinion that the commitment of the person alleged to be insane is for public welfare or for the welfare of said person; 2. *uch person or the one having charge of him is opposed to his being taken to a hospital or asylum. Proced"re &or $%e )o!pi$aliLa$ion o& In!ane Per!on! 2etition for commitment filed in +)1 1ourt order fi,ing the date and place for hearing and ordering the *heriff to produce the alleged insane person in the hearing SECTION ,. ORDER FOR )EARIN 1. )he court shall fi, a date and place for hearing where all concerned may appear to contest the petition; 2. 1opies of the notice of hearing shall be served upon( a. )he person alleged to be insane; and b. )he one having charge of him, or on such of his relatives residing in the province@city as the 7udge may deem proper. 3. )he court shall order the sheriff to produce the alleged insane person >if possible? on the date of hearing; 4. Hpon satisfactory proof that the commitment is necessary and that his relatives are unable to take proper custody and care of him, the court shall order his commitment in a hospital@asylum; . )he court shall make proper provisions for the custody of the ward<s property until a guardian is properly appointed. Rig%$ o& $%e in!ane per!on $o no$ice and %earing= 9rdinarily, the person whose liberty is sought to be restrained is entitled by law to proper notice to such proceeding and by force of statute other persons may be entitled to notice. 4hile it has been held that want of notice does not render the proceedings invalid and that the commitment is not sub7ect to collateral attack, it has also been held that want of notice renders the proceeding void or at least, is good ground for vacating the order of commitment >3errera, p. 545). SECTION 4. )EARIN AND JUD MENT B"rden o& proo&= -n all actions and proceedings, the burden of proving insanity is on the plaintiff who alleges it; but where it is set up as an affirmative defense, the burden of proving rests on the defendant. E!$a$e o& $%e in!ane per!on= 2ending an appeal from the 7udgment declaring a person to be insane, the trial court has 7urisdiction to order a third party to appear and show cause why the property of the insane should not be delivered to the guardian. -t is the duty of the court to protect the property of the insane pending the appeal (,ercader *. Iisli@enus, -.R. #o. &911/30, August '., 1014). SECTION :. DISC)AR E OF INSANE

*ervice of 0otice of the 1ourt 9rder to the alleged insane person and to the person who has custody of him@her Gearing on the 2etition Dudgment granting@denying the 2etition Applica$ion o& $%e r"le= )he rule is applicable only when the hospitali&ation of the insane person is for the public welfare or for the welfare of said person, who in the 7udgment of the Birector of Gealth, is insane, provided that the one who has charge of him is opposed to such confinement (3errera. P. 54'). )o!pi$aliLa$ion o& $%e In!ane (Rule -.-) Aor the protection of protecting the community at large and in the nature of police regulations (3errera, p. 543). "ardian!%ip (Rules $,/$7) Aor the purpose of protecting the person and the estate of the insane (3errera, p. 543).

SECTION 1. +ENUE. PETITION FOR COMMITMENT +en"e= +)1 of province where the person alleged to be insane is found. ;%o &ile!= Birector of Gealth with the assistance of city or provincial prosecutor. In!ani$. A condition of the mind which is so impaired in function or so deranged as to induce a deviation from normal conduct on the person so afflicted.

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San Beda College of Law 2010 Centralized Bar Operations Birector of Gealth may file this petition in the +)1 which ordered the commitment, when he is of the opinion that the person is permanently or temporarily cured or may be released without danger. )he Gealth *ecretary cannot order release without the approval of the +)1. 9n the other hand, the +)1 cannot order release without recommendation from the Gealth *ecretary ($hin Ah Foo *. $oncepcion, -.R. #o. &933'61, ,arch 31, 103(). SECTION C. ASSISTANCE OF FISCAL IN T)E PROCEEDIN

R ULE #"2 H ABEAS C ORPUS

Certiorari9 Pro%i1i$ion and 0andamus *pecial 1ivil Action (Rule 4.) -t reaches the record but not the body; concerned with errors committed by a court. Birect attack. Aailure of respondent to file comment will not be punished by contempt and will not even be declared in default. Habeas Corpus *pecial 2roceeding -t reaches the body but not the record; in'uiry on the legality of the detention. 1ollateral attack. Aailure to constitutes >indirect?. file return contempt SECTION 1. TO ;)AT )ABEAS CORPUS EATENDS 1. 1ases of illegal confinement or detention by which a person is deprived of his liberty; and 2. 1ases by which the rightful custody of the person is withheld from the person entitled thereto. No$e= Actual physical restraint is not re'uired; any restraint which will pre7udice freedom of action is sufficient (,oncupa *. Enrile, -.R. #o. 4335., <anuar7 3(, 1064). ;ri$ o& Habeas Corpus 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 detention, to do, submit to, and receive whatsoever the court or 7udge awarding the writ shall consider in that behalf (;lusorio *. Bildner, -.R. #o. 130/60, ,a7 1', '(((). )he function of the special proceeding of ha2eas corpus is to in'uire into the legality of one<s detention. -n all petitions for habeas corpus, the court must in'uire into every phase and aspect of petitioner<s detention 6 from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition and .only after such a scrutiny can the court satisfy itself that the due process clause of our 1onstitution has been satisfied (Bernarte *. $ourt o+ Appeals, -.R. #o. 1(//51. =cto2er 16, 1004). ;%en a/ailed o& >As a conseCuence o+ a Audicial proceeding) 1. )here has been a deprivation of a constitutional right resulting in the restraint of a person;

1ourt and prevailing party +espondent is the detainer. are named as respondents. Find! o& ;ri$ o& Habeas Corpus 1. Preli#inar. ci$a$ion 6 -f the person is detained under governmental authority theconfinement illegality of his 2etition alleging theand illegal or detention is not patent from the petition for the writ, the court detention. issues the citation to the government officer having custody to show cause why the writ of habeas corpus -ssuance ofissue. the writ by the court having 7urisdiction. should not 2. Pere#p$or. 0ri$ 6 -f the cause of the detention appears to be patently illegal. 0oncompliance with this *ervice of the writ by leaving the original with the is punishable. person to whom it is directed and preserving a copy on which to make return of service. Proced"re &or $%e I!!"ance o& $%e ;ri$ o& Habeas Corpus "nder R"le 16, Gearing by the court. +ecommitment, bail or discharge of the detained person. E,ecution of the writ by delivering the body of the person detained to the court and return of service. 53

San Beda College of Law 2010 Centralized Bar Operations 2. )he court had no 7urisdiction to impose the sentence; 3. An e,cessive penalty has been imposed, as such sentence is void as to such e,cess; 4. 4here the law is amended, as when the penalty is lowered. 9btain freedom after serving minimum sentence when the penalty under an old law has been reduced by an amendatory law ($ru@ *. 1irector o+ Prisons, -.R. #o. &9450/, #o*em2er 3, 101()> . Benial of right to a speedy trial >since it is 7urisdictional?; !. 4here the results of post3conviction B0A testing are favorable to the convict. ". Enable the parents to regain custody of a minor child, even if the latter be in the custody of a third person of her own free will >Sal*aBa *. -aela, -.R. #o. &93511.., Fe2ruar7 '1, 1031?; #. -n determining the constitutionality of a statute (People o+ the Philippines *. ?era, -.R. #o. &95.46., #o*em2er 14,103/)> $. 4hen testing the legality of an alienMs confinement and proposed e,pulsion from the 2hilippines >&ao Dang Bun *. Fa2re, -.R. #o. &914/3, =cto2er '', 1056?; 1%.-n permitting an alien to land in the 2hilippines >&im $heng *. ;nsular $ollector o+ $ustoms, -.R. #o. 145(4, Septem2er 13, 10'(?; 11.-n determining the legality of an e,tradition >%nited States *. Rauscher, / S. $t. '35, 3( &. Ed. 5'., 1ecem2er 4, 1664?. Na$"re o& $%e pe$i$ion= 2etition for habeas corpus, which is an in'uisition by the government, at the suggestion and instance of an individual, most probably, but still in the name and capacity of the sovereign is like a proceeding in rem. -t is also instituted for the purpose of fi,ing the status of a person and that there can be no 7udgment entered against anybody since there is no real plaintiff and defendant (Alimpoos *. $ourt o+ Appeals, -.R. #o. &9 '/331, <ul7 3(, 1061). 1. -t is not in the nature of a writ of error; nor intended as substitute for the trial court<s function. )he writ cannot be used to investigate and consider 'uestions of error that might be raised relating to procedure or on the merits. 2. -t cannot take the place of appeal, certiorari or writ of error. 3. )he in'uiry in a habeas corpus proceeding is addressed to the 'uestion of whether the proceedings and the assailed order are, for any reason, null and void. 4. )he writ is not ordinarily granted where the law provides for other remedies in the regular course, and in the absence of e,ceptional circumstances. . Gabeas corpus should not be granted in advance of trial. !. Gabeas corpus is a summary remedy. ". )he writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be the unlawful authority. Gence, the only parties before the court are the petitioner >prisoner? and the person holding the petitioner in custody, and the only 'uestion to be resolved is whether the custodian has authority to deprive the petitioner of his liberty. )he writ may be denied if the petitioner fails to show facts that he is entitled thereto ex merito Austicias. #. A writ of habeas corpus, which is regarded as a .palladium of liberty/ is a preroga$i/e 0ri$ which does not issue as a matter of right but in the sound discretion of the court. -t is, however, a writ of right on proper formalities being made by proof. +esort to the writ is not to in'uire into the criminal act of which a complaint is made but unto the right of liberty, notwithstanding the act, and the immediate purpose to be served is relief from the illegal restraint. P"rpo!e= )he essential ob7ect and purpose of the writ of habeas corpus is to in'uire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal (,oncupa *. Enrile, -.R. #o. 4335., <anuar7 3(, 1064). )he ultimate purpose of the writ of habeas corpus is to relieve a person from unlawful restraint >1astriciones v. 1hief of *taff of Armed forces of the 2hilippines, 5.+. 0o. ! "31, *eptember 2#, 1$#$?. )he writ of habeas corpus was devised and e,ists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. And any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty (?illa*icencio *. &u)2an, -.R. #o. &915430, ,arch '., 1010). ro"nd! &or !"!pen!ion o& $%e pri/ilege o& $%e 0ri$ o& habeas corpus "nder $%e Con!$i$"$ion 1. -nvasion, when public safety re'uires it; 2. +ebellion, when public safety re'uires it (Article ?;;, Section 16 o+ the 106/ $onstitution)

In ca!e! o& illegal con&ine#en$ or de$en$ion eneral r"le= )he release, whether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic. Exception= 4hen there are restraints attached to his release which precludes freedom of action, in which case the court can still in'uire into the nature of his involuntary

54

San Beda College of Law 2010 Centralized Bar Operations restraint (?illa*icencio *. 15430, ,arch '., 1010). &u)2an, -.R. #o. &9 )his provision is another e,ception to the rule that processes of the +egional )rial 1ourt are enforceable throughout the 2hilippines (Regalado, p. 1/4). Aamily 1ourts have e?cl"!i/e 2"ri!dic$ion to issue writs of habeas corpus involving c"!$od. o& #inor!. )he use of habeas corpus, not a petition for mandamus, to test the legality of an alien<s detention and proposed deportation from the 2hilippines is a settled practice because aside from being thorough and complete, it affords prompt relief from unlawful imprisonment (Bisschop *. -alang, -.R. #o. &91634., ,a7 31, 1043). 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 ma,imum term (=++ice o+ the $ourt Administrator *. <udge Perello, A.,. #o. RD<9(.910.3, '5 1ecem2er '((6). Scope o& e&&ec$i/i$. Collegia$e Co"r$ Enforceable throughout the 2hilippines. +eturnable to any court. RTC Enforceable only within their respective 7udicial region. +eturnable only to itself.

-n Bagtas *. 3on. Ruth $. Santos, et al., (-.R. #o. 14446', #o*em2er '/, '((0), the 1ourt held that the mere production of child in the habeas corpus case does not warrant outright dismissal. A trial to determine who had rightful custody over the child should be conducted by the court. +ol"n$ar. Re!$rain$ eneral R"le= 4rit not available if restraint is voluntary (Jell7 *. 1irector o+ Prisons, -.R. #o. &9'(5/6, ,arch 15, 10'3). Exception= 4rit will lie to enable the parents >or person having substituted parental authority? to recover custody of a minor child although she is in custody of a 3 rd person on her own volition (DiAing *. $ourt o+ Appeals, -.R. #o. 1'.0(1, ,arch 6, '((1). No$e= Coluntariness is viewed from the point of view of the person entitled to custody. ;%en pe$i$ion &or %a1ea! corp"! no$ proper= 1. Aor asserting or vindicating denial of right to bail; 2. Aor correcting errors in appreciation facts@appreciation of law.

of

;%e$%er $%e pe$i$ion &or $%e 0ri$ o& habeas corpus #a. 1e properl. &iled $oge$%er 0i$% $%e pe$i$ion &or cer$iorari and #anda#"!= )he writs of ha2eas corpus and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts. Gence, a writ of ha2eas corpus may be used with the writ of certiorari for the purpose of review (-al*e@ *. $ourt o+ Appeals, -.R. #o. 115(54, =cto2er '5, 1005). SECTION ,. ;)O MA- RANT T)E ;RIT )he +)1, 1A, and *1 have concurrent 7urisdiction to issue writs of habeas corpus. )he :)1, by virtue of special 7urisdiction under ;.2. ;lg. 12$, can issue the writ in case there is no available +)1 7udge. Gierarchy of courts is not observed. )he writ issued by the +)1 is enforceable within its territorial 7urisdiction. 4hile the writ issued by 1A or *c is enforceable anywhere in the 2hilippines. )he Sandigan2a7an may issue writs of habeas corpus only if it is in aid of its appellate 7urisdiction.

J"ri!dic$ion in ca!e! o& %a1ea! corp"! 0i$% re!pec$ $o c"!$od. o& #inor!= Although the Aamily 1ourt where the petitioner resides or where the minor may be found has e,clusive and original 7urisdiction to hear petitions for habeas corpus with respect to custody of minors, the *upreme 1ourt and the 1ourt of Appeals can take cogni&ance of such petition in order that it can be enforceable within the 2hilippines. Gowever, the return can be heard in the A1@+)1 >if there is no A1 in the 7udicial region? and there is no need to file a separate petition for custody because the issue can be ventilated in the petition for the writ.

SECTION 4. T)EREFOR

REEUISITES

FOR

APPLICATION

;%o #a. appl.= 1. 2arty for whose relief it is intended; or 2. *ome person on his behalf. +eri&ied pe$i$ion #"!$ !e$ &or$%= 1. )hat the person in whose behalf the application is made is imprisoned or restrained of his liberty;

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San Beda College of Law 2010 Centralized Bar Operations 2. )he name of the person detaining another; 3. )he place where he is imprisoned or restrained of his liberty; 4. )he cause of his detention; . )he verified petition must be signed. No$e= )he formalities re'uired for petitions for habeas corpus must be construed liberally. *trict compliance with the technical re'uirements for a habeas corpus petition may be dispensed with where the allegations in the application are sufficient to make out a case for habeas corpus (Fletcher *. 1irector o+ Bureau o+ $orrections, %1J915(/1, <ul7 1/, '((0). )he petition for the writ is re'uired to be verified but the defect in form will not be fatal. -n fact, the *upreme 1ourt has held that it is the duty of a court to issue the writ if there is evidence that a person is un7ustly restrained of his liberty within 7urisdiction even if there is no application (?illa*icencio *. &u)2an, supra). -t is necessary, however, that the person in whose behalf the petition is filed is under actual and effective restraint or deprivation of liberty (-on@ales *. ?iola, -.R. #o. &9 5310., August '3, 103.). SECTION :. ;)EN ;RIT NOT ALLO;ED OR DISC)AR ED AUT)ORIIED 'JUCIT* 1. -f 2urisdiction appears after the writ is allowed; 2. -f the person is in the custody of an officer "nder process issued by a court or by virtue of a 7udgment or order of a court of record which has 7urisdiction to issue the process, render the 7udgment or make the order; 3. -f the person is charged with or convicted of an offense in the 2hilippines; 4. -f the person is suffering imprisonment under lawful 7udgment. . Three >3?3day detention of a suspect for three >3? days without charge (Sec. 16, Ra #o. 03/' K3uman Securit7 Act o+ '((/L to ta)e e++ect on <ul7 15, '((/). S"per/ening e/en$! #a. 1ar relea!e= Even if the arrest of a person is illegal, supervening events may bar release or discharge from custody. 4hat is to be in'uired into is the legality of his 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 Sec. 5, be no longer illegal at the time of the filing of the application (?elasco *. $ourt o+ Appeals, -.R. #o. 116455, <ul7 /, 100.). No$e= 2osting of bail is not a waiver. Hnder the +evised +ules on 1riminal 2rocedure, as application for bail is not necessarily a bar to challenge the validity of the arrest (Sec. '4, Rule 115). SECTION C. ;)EN ;RIT MUST BE ISSUED RANTED AND

Proced"re &or gran$ o& 0ri$= '+ACS R)* 1. +erified petition signed by the party for whose relief it is intended; or by some other person in his behalf; 2. Allowance of writ; 3. Command officer to produce; 4. Service of writ by sheriff or other officer; . Return; and !. )earing on return. eneral R"le= -f it appears that the writ should issue, the clerk of court issues the writ under the court<s seal (Sec. ., Rule 1('). Exception= -n emergency cases, the 7udge may issue the writ under his own hand and deputi&e any person to serve it. )he law even makes it the duty of the court to grant the writ of habeas corpus, if there is evidence that a person is un7ustly restrained within the court<s 7urisdiction, though no application for the writ was made (?illa*icencio *. &u)2an, -.R. #o. &915430, ,arch '.,1010). SECTION 8. TO ;)OM ;RIT DIRECTED9 AND ;)AT TO REEUIRE A.-n case of imprisonment or restraint by an officer( 1. )he writ shall be directed to him; 2. )he officer shall produce the body of the person before the court. 3. *tate the cause of detention and prove his authority. ;.-n case of imprisonment or restraint by a person not an officer( 1. )he writ shall be directed to an officer; 2. )he officer shall take and produce the body of the person before the court; 3. )he officer shall summon the person detaining another to appear before the court to show the cause of the imprisonment or restraint. SECTION 3. )O; PRISONER DESI NATED AND ;RIT SER+ED )o0 !er/ice i! #ade= 1. ;y leaving the original of the writ with the person to whom it is directed or to any person having custody if the former cannot be found or has not the person in his custody; and 2. ;y preserving a copy on which to make return of service.

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San Beda College of Law 2010 Centralized Bar Operations )he writ itself plays the role of summons in ordinary actions; court ac'uires 7urisdiction over the person of the respondent 27 mere ser*ice o+ "rit. SECTION 7. )O; ;RIT EAECUTED AND RETURNED eneral r"le= 9fficer to whom writ is directed shall convey the detained person on the day specified in the writ( 1. ;efore the 7udge who allowed the writ; 2. -f he is absent, before any 7udge of the same court. Exception= -f the person to be produced has sickness or infirmity such that he cannot be brought before the court without danger. O&&icer !%all= 1. 1onvey the person so imprisoned before the 7udge, unless from sickness or infirmity, such person cannot, without danger be brought before the court. 2. :ake the return of the writ together with the day and the cause of caption or restraint. SECTION 5. DEFECT OF FORM No 0ri$ can 1e di!o1e.ed &or de&ec$ o& &or# i& i$ !"&&icien$l. !$a$e!= 1. )he person in whose custody or under whose restraint the party imprisoned or restraint is held; and 2. )he court or 7udge before whom he is to be brought. SECTION 16. CONTENTS OF RETURN 1. 4hether %e %a! or %a! no$ $%e par$. in %i! c"!$od. or power, or under restraint; 2. -f %e %a! $%e par$. in %i! c"!$od. or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order, e,ecution, or other process, if any, upon which the party is held; 3. -f the party is in his custody or power or is restrained by him, and is no$ prod"ced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or 7udge; 4. -f he has had the party in his custody or power, or under restraint, and %a! $ran!&erred !"c% c"!$od. or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. SECTION 11. RETURN TO BE SI NED AND S;ORN TO SECTION 1,. ADJOURNMENTS )EARIN OF RETURN. 1. Gis remedy, upon the return of the writ, the court must immediately hear the case. 2. )he hearing :AL be ad7ourned by the court for good causes, provided that conditions upon the safekeeping of the detained person is laid. 3. -f the detained person cannot be produced before the court, the officer of person detaining must satisfy the court of the gravity of the alleged sickness or infirmity. 4. Buring the hearing, the court shall disregard matters of form and technicalities of the authority or order of commitment. )he failure of petitioners to file a reply to the return of the writ warrants the dismissal of the petition because unless controverted, the allegations on the return are deemed to be true or admitted (Florendo *. <a*ier, -.R. #o. &9341(1, <une '0, 10/0). SECTION 14. ;)EN T)E RETURN E+IDENCE9 AND ;)EN ONL- A PLEA -f detention is by public authority, the return is considered prima +acie evidence of the validity of the restraint and the petitioner has the burden of proof to show that the restraint is illegal. As per +ule 131 on legal presumption that the duty of a public officer is regularly performed. -f detention is by reason of pri1ate authority, the return is considered only a plea of the facts asserted therein and the person responsible for the detention has the burden of proof to establish that the detention is legal and 7ustified. SECTION 1:. ;)EN PERSON LA;FULLIMPRISONED RECOMMITTED9 AND ;)EN LET TO BAIL 3a2eas corpus would not lie after the 4arrant of 1ommitment was issued by the court on the basis of the -nformation filed against the accused >;lagan *. Enrile, -.R. #o. /(/56, =cto2er '1, 106.). 9nce a person detained is duly charged in court, he may no longer 'uestion his detention through a petition for issuance of a writ of habeas corpus. 4ould be to 'uash the information and@or the warrant of arrest duly issued. )he term .court/ includes 'uasi37udicial bodies of governmental agencies authori&ed to order the person<s confinement, like the Beportation ;oard of the ;ureau of -mmigration (-o *. Ramos, -.R. #o. 14/.40, 5 Septem2er '((0). -f the offense is punishable by death, the person lawfully detained shall not be released, discharged or bailed. -f the offense is not punishable by death, he :AL be recommitted to imprisonment of admitted to bail in the discretion of the court or 7udge (Sec. 15, Rule 1(').

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San Beda College of Law 2010 Centralized Bar Operations SECTION 1C. ;)EN PRISONER DISC)AR ED IF NO APPEAL -f one is unlawfully imprisoned, the court shall order his discharge but it shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. -f the person detaining him does not appeal, the prisoner shall be released. Period o& appeal= 4ithin :7 %o"r! from notice of the 7udgment or final order appealed from (Sec. 3, Rule 51). Aorm of appeal is by no$ice o& appeal. )he release contemplated under the writ of habeas corpus is one which is free from any involuntary restraint. 4hen the person so released continues to be denied of one or more of his constitutional freedoms, where there is present denial of due process, or where the restraints are not merely involuntary but appear to be unnecessary, the person concerned or those acting in his behalf may still avail themselves again of the privilege of the writ. (,oncupa *. Enrile, -.R. #o. 4335., <anuar7 3(, 1064). SECTION 18. PENALT- FOR REFUSIN TO ISSUE ;RIT9 OR FOR DISOBE-IN T)E SAME A penalty of 2h21,%%% and may be punished for contempt. P"ni!%a1le ac$! or o#i!!ion! 1. )he 1lerk of 1ourt refuses to issue the writ after allowance by the court and demand; 2. )he person directed in the writ( a. 0eglects or refuses to obey or make the return; b. :akes a false return; c. +efuses to deliver a true copy of the warrant@order of commitment, within ! hours after demand (Sec. 14). 3. -mprisoning a person set at liberty by the writ, for the same offense (Sec. 1/). 4. +emoving a prisoner from one custody to another (Sec. 16). SECTION 13. PERSON DISC)AR ED NOT TO BE A AIN IMPRISONED eneral R"le= A person who is set at liberty upon a writ of ha2eas corpus shall not be again imprisoned for the same offense. Exception= Ge is imprisoned by virtue of lawful order or process of court having 7urisdiction of the offense or cause. ;%e$%er $%e S$a$e can re!er/e $%e po0er $o re(arre!$ a per!on &or an o&&en!e a&$er a co"r$ o& co#pe$en$ 2"ri!dic$ion %a! a1!ol/ed %i# o& $%e o&&en!e= R"ling= *uch a reservation is repugnant to the principle that the government is one of laws and not of men. Hnder this principle, the moment a person is ac'uitted of a criminal charge he can no longer be detained or re3 arrested for the same offense (Do7oto *. Ramos, -.R. #o. &940'/( =cto2er 1., 106.). SECTION 17. ;)EN PRISONER MA- BE REMO+ED FROM ONE CUSTOD- TO ANOT)ER 1. ;y legal process; 2. 2risoner is delivered to an inferior officer to carry to 7ail; 3. ;y order of proper court or 7udge directing that he be removed from one place to another within the 2hilippines for trial; 4. -n case of fire, epidemic, insurrection or other necessity or public calamity. SECTION 15. RECORD OF ;RIT9 FEES AND COSTS

R ULE ON C USTODY OF M INORS AND W RIT OF H ABEAS C ORPUS IN R ELATION TO THE C USTODY OF M INORS
(A.,. #o. (39(59(59S$) ;%o #a. &ile $%e pe$i$ion= A verified petition for the rightful custody of a minor may be filed by an. per!on clai#ing !"c% rig%$ (Sec.'). ;%ere $o &ile pe$i$ion= Aamily 1ourt of the province or city where the petitioner resides or where the minor may be found (Sec.3). )he petition may however be filed with the regular court in the absence of the presiding 7udge of the Aamily 1ourt, provided however that the regular court shall refer the case to the Aamily 1ourt as soon as its presiding 7udge returns to duty. )he petition may also be filed with the *1, 1A, or with any of its members and, if so granted the writ shall be enforceable anywhere in the 2hilippines. )he writ may be made returnable to a Aamily 1ourt or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. Con$en$! o& /eri&ied pe$i$ion 'P(NOS* 1. )he personal circumstances of the petitioner and respondent;

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San Beda College of Law 2010 Centralized Bar Operations 2. )he name, age and present whereabouts of the minor and his or her relationship to the petitioner and respondent; 3. )he material operative facts constituting deprivation of custody; 4. Such other matters which are relevant to the custody of minor (Sec.5). -n Som2ong *. $ourt o+ Appeals, et al. (-.R. #o. 1116/4, <anuar7 31, 1004), the 1ourt laid down the following re'uisites in petitions for habeas corpus involving minors( 1. )hat the petitioner has the right of custody over the minor; 2. )hat the rightful custody of the minor is being withheld from the petitioner by the respondent; and 3. )hat it is to the best interest of the minor concerned to be in the custody of petitioner and not that of the respondent. Mo$ion $o di!#i!! is not allowed e,cept on the ground of lack of 7urisdiction over the sub7ect matter or the parties (Sec.4). +espondent must file a verified answer within days from the service of summons and copy of the petition (Sec./). 2re3trial is #anda$or. (&ec'$)' E&&ec$! o& &ail"re $o appear a$ $%e pre($rial 1. -f the petitioner fails to appear personally at the pre3trial, the case shall be dismissed, unless his counsel or a duly authori&ed representative appears in court and proves a valid e,cuse for the non3appearance of the petitioner; 2. -f the respondent has filed his answer but fails to appear at the pre3trial, the petitioner shall be allowed to present his evidence e,3parte. )he court shall then render 7udgment on the basis of the pleadings and the evidence thus presented (Sec. 11). Aailure to file the pre3trial brief or to comply with its re'uired content shall have the same effect as failure to appear at the pre3trial (Sec. 1(). Pro/i!ional order a0arding c"!$od.: As far as practicable, the following order of preference shall be observed in the award of custody( 'BE BAO* 1. Both parents 7ointly; 2. Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment unless the parent chosen is unfit; 3. )he grandparent or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or dis'ualified; 4. )he eldest 1rother or sister over twenty one >21? years of age unless he or she is unfit or dis'ualified; . )he actual custodian of the minor over twenty one >21? years of age, unless the former is unfit or dis'ualified; or !. Any other person or institution the court may deem suitable to provide proper care and guidance for the minor (Sec.13). Te#porar. /i!i$a$ion rig%$!= )he court shall provide in its order awarding provisional custody appropriate visitation rights to the non 3 custodial parent or parents unless the court finds said parent or parents unfit or dis'ualified (Sec.1.). )old Depar$"re Order= )he minor child sub7ect of the petition shall not be brought out of the country without prior order from the court while the petition is pending. )he 1ourt, motu proprio or upon application under oath, may issue an ex parte hold departure order (Sec.14). No$e= )he court may also issue a 2rotection 9rder (Sec.1/). Appeal : 0otice of appeal within 1 days from notice of denial of motion for reconsideration or new trial (Sec.10). No$e= 0o appeal shall be allowed unless a motion for reconsideration or new trial has been filed. Pe$i$ion &or ;ri$ o& Habeas Corpus *hall be enforceable within its 7udicial region to which the Aamily 1ourt belongs (Sec. '().

R ULE

ON

W RIT

OF

A MPARO

(A.,. #o. (/9091'9S$, Septem2er '., '((/) ;ri$ o& Amparo 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. -t covers e,tralegal killings and enforced disappearances or threats thereof (applica2le in pending cases due to the remedial nature o+ the "rit). E?$ralegal Filling! =illings committed without due process of law (e.g. sal*age, summar7 and ar2itrar7 executions). En&orced Di!appearance!

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San Beda College of Law 2010 Centralized Bar Operations Arrest, detention or abduction of a person by a government officer or organi&ed groups or private individuals acting with direct or indirect ac'uiescence of the government; refusal of the state to disclose the fate or whereabouts of the person concerned or refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. 1. 2rit of Amparo (Kto protectL) 6 originated in :e,ico; 2. Amparo "ibertad 6 for the protection of personal freedom e'uivalent to Gabeas 1orpus writ; 3. Amparo Contra "eyes 6 for 7udicial review of constitutionality of statutes; 4. Amparo Casacion 6 for 7udicial review of constitutionality and legality of 7udicial decisions; . Amparo Administrati1o 6 for 7udicial review of administrative actions; and !. Amparo A!rario 6 protection of peasant<s rights derived from agrarian reform process (Secretar7 o+ #ational 1e+ense *. ,analo, -.R. #o. 16(0(4, =cto2er /, '((6). 8imited to li&e9 li1er$. and !ec"ri$. because there are other enforced remedies. ;road enough to encompass both actual and threatened violation of human rights. ;%o #a. &ile (order of preference)= ;y the aggrieved party or by any 'ualified person or entity in the +ollo"ing order( 1. Any mem2er o+ the immediate +amil7, namely( the spouse, children and parents of the aggrieved party; 2. Any ascendant, descendant or collateral relati*e of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or 3. Any concerned citi@en, organi@ation, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. Ailing of a petition by the aggrie*ed part7 suspends the right of all other authori&ed parties to file similar petitions. 8ikewise, the filing of the petition by an authori@ed part7 on behalf of the aggrieved party suspends the right of all others, observing the order established herein (Sec. '). Ra$io= )o prevent the indiscriminate and groundless filing of petitions for amparo which may even pre7udice the right to life, liberty or security of the aggrieved party. ;%ere $o &ile= 1. +egional )rial 1ourt where the threat, act or omission was committed or any of its elements occurred; 2. 4ith the Sandigan2a7an, 1ourt of Appeals, the *upreme 1ourt or any 7ustice of such courts. )his writ shall be enforceable anywhere in the 2hilippines. No$e= ;asically similar to the +ule on petitions for the writ of ha2eas corpus. -t is, however, different because it includes the Sandigan2a7an for the reason that public officials and employees will be respondents in amparo petitions. Con$en$! o& $%e /eri&ied pe$i$ion 1. 2ersonal circumstances of the petitioner and of respondent responsible for the threat, act or omission; 2. Ciolated or threatened right to life, liberty or security of the party aggrieved. *tating in detail the circumstances; 3. *pecify the names, personal circumstances of the investigating authority or individuals, as well as the manner and conduct of investigation; 4. Actions and recourses taken by the petitioner to determine the whereabouts of aggrieved party and identity of the person responsible for the threat, act or omission; . )he relief prayed for; !. A general prayer for other 7ust and e'uitable reliefs may be included (Sec. .). ;%ere re$"rna1leD en&orcea1le 1. 4hen issued by the +)1 or an 7udge thereof, the writ is returnable before such court or 7udge; 2. 4hen issued by the Sandigan2a7an, 1ourt of Appeals or any of their 7ustices, it may be returnable to such court or any 7ustice thereof, or to any +)1 where the threat, act or omission was committed or any of its elements occurred; 3. 4hen issued by the *upreme 1ourt or any of its 7ustices, it may be returnable to such 1ourt or any 7ustice thereof, or before the Sandigan2a7an or the 1ourt of Appeals or any of their 7ustices, or to any +)1 in the place where the threat, act or omission was committed or any of its elements took place (Sec.3). No$e= Bue to the e,traordinary nature of the writ, which protects the mother of all rights 6the right to life 6 the petition ma7 2e +iled on an7 da7, including *aturdays, *undays and holidays; and at an7 time, from morning until evening. No doc>e$ &ee! Ra$io= )he enforcement of these sacrosanct rights should not be frustrated by lack of finances. I!!"ance o& $%e ;ri$= Hpon the filing of the petition, the court, 7ustice or 7udge shall immediately order the

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San Beda College of Law 2010 Centralized Bar Operations issuance of the writ if on its face it ought to issue. )he writ shall be served immediately. )he writ should set the date and time for a !"##ar. hearing of the petition which shall not be later than se*en (/) da7s from the date of its issuance (Sec. 13). P"ni!%#en$ &or re&"!al $o i!!"e 0ri$= 1ontempt without pre7udice to other disciplinary actions (Sec. 14). Re$"rn )he +eturn serves as the responsive pleading to the petition. Hnlike an Answer, the +eturn has other purposes aside from identifying the issues in the case. +espondents are also re'uired to detail the actions they had taken to determine the fate or whereabouts of the aggrieved party (1e &ima *. -atdula, -.R. #o. '(5.'6, Fe2ruar7 10, '(13). Con$en$! o& re$"rn 1. )he lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; 2. )he steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; 3. All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and 4. -f the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken( a. )o verify the identity of the aggrieved party; b. )o recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible. c. )o identify witnesses and obtain statements from them concerning the death or disappearance; d. )o determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; e. )o identify and apprehend the person or persons involved in the death or disappearance; and f. )o bring the suspected offenders before a competent court. )he return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. +espondent shall file a *eri+ied "ritten return together with supporting a++ida*its within /' hours after service of the writ. )he period to file a return cannot be e,tended e,cept on highly meritorious grounds (Sec. 0). 0o general denial 6 the policy is to re'uire revelation of all evidence relevant to the petition. Avoids the ineffectiveness of the writ of ha2eas corpus, where often the respondent makes a simple denial in the return that he or she has custody over the missing person, and the petition is dismissed. O#ni1"! 0ai/er r"le )he respondent must plead all his defenses in the return. Aailure to do so shall operate as a waiver of such defenses not therein pleaded (Sec. 1(). Pro%i1i$ed pleading! and #o$ion! 1. :otion to dismiss; 2. :otion for e,tension of time to file return, opposition, affidavit, position paper and other pleadings; 3. Bilatory motion for postponement; 4. :otion for a bill of particulars; . 1ounterclaim or cross3claim; !. )hird3party complaint; ". +eply; #. :otion to declare respondent in default; $. -ntervention; 1%.:emorandum; 11.:otion for reconsideration of interlocutory orders or interim relief orders; and 12.2etition for certiorari, mandamus or prohibition against any interlocutory order (Sec. 11). )he filing of motion for new trial and petition for relief from 7udgment are allowed 2ecause denial o+ these remedies ma7 Aeopardi@e the rights o+ the aggrie*ed part7. (Annotation to the Irit o+ Amparo). E&&ec$ o& &ail"re $o &ile re$"rn= )he court, 7ustice or 7udge shall hear the petition ex parte. Proced"re &or %earing= )he hearing shall be summar7, but the 7udge may call a preliminar7 con+erence to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. )he hearing shall be held on a daily basis until completed and is given the same priority as that of petitions for writ of habeas corpus. In$eri# relie&! a/aila1le $o pe$i$ioner 'TIP* 1. Te#porar. pro$ec$ion order 6 )he court, 7ustice or 7udge, upon motion or motu proprio, may order that the

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San Beda College of Law 2010 Centralized Bar Operations petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. -f the petitioner is an organi&ation, association or institution referred to in *ection 3>c? of this +ule, the protection may be e,tended to the officers involved. 2. In!pec$ion order ( )he court, 7ustice or 7udge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant ob7ect or operation thereon. 3. Prod"c$ion order ( )he court, 7ustice or 7udge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, ob7ects or tangible things, or ob7ects in digiti&ed or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. In$eri# relie&! a/aila1le $o $%e re!ponden$= Hpon verified motion of the respondent and after due hearing, the court, 7ustice or 7udge may issue an in!pec$ion order or prod"c$ion order. A motion for inspection order shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent. B"rden o& proo& and !$andard o& diligence re@"ired= 2arties shall establish their claims by su2stantial e*idence. -f respondent is a pri*ate indi*idual or entit7, must prove that ordinar7 diligence as re'uired by applicable laws, rules and regulations was observed in the performance of duty. -f a pu2lic o++icial or emplo7ee, extraordinar7 diligence is re'uired. Presumption o+ regularit7 in the performance of official duty canno$ be invoked which is in accord with current 7urisprudence on custodial interrogation and search warrant cases. )here is no need to show that petitioner has e,hausted prior administrative remedies. J"dg#en$= )he court shall render 7udgment within ten (1() da7s from the time the petition is submitted for decision. 0o enforcement of days like in 3a2eas 1ata (Sec. 16). Appeal= 4ithin . da7s to appeal to the S$ under Rule 5. and may raise Cuestions o+ +act or la" or 2oth (Sec. 10). Ra$io= Amparo proceedings involve determination of facts considering its sub7ect6extralegal )illings and en+orced disappearances. J"dg#en$ !"12ec$ $o appeal /ia R"le :C -f the allegations are proven with substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate. )he 7udgment should contain measures, which the 7udge views as essential for the continued protection of the petitioner in the Amparo case. )hese measures must be detailed enough so that the 7udge may be able to verify and monitor the actions taken by the respondents. -s it this 7udgment that could be sub7ect to appeal to the *upreme 1ourt via +ule 4 (1e &ima *. -atdula, -.R. #o. '(5.'6, Fe2ruar7 10, '(13). )he pri/ilege o& $%e ;ri$ o& Amparo should be distinguished from the ac$"al order called the 4rit of Amparo. )he prvilege includes availment of the entire procedure outlined in A: 0o. %"3$3123*1 (1e &ima *. -atdula, -.R. #o. '(5.'6, Fe2ruar7 10, '(13). Arc%i/ing and re/i/al o& ca!e!= )he court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives 'Li1eraliLed r"le on di!#i!!al*. )he petition shall be dismissed "ith preAudice upon +ailure to prosecute the case after the lapse of t"o (') 7ears from notice to the petitioner of the order archiving the case (Sec. '(). In!$i$"$ion o& !epara$e ac$ion!= Ailing of a petition for the writ of amparo shall not preclude the filing of separate criminal, civil or administrative actions (Sec. '1). E&&ec$ o& &iling o& a cri#inal ac$ion= 4hen a criminal action has been commenced, no separate petition for the writ shall be filed. )he reliefs under the writ shall be available by motion in the criminal case. )he procedure under the +ule on the 4rit of Amparo shall govern the disposition of reliefs available under the writ Sec. ''). Con!olida$ion= 4hen a criminal action is filed subse'uent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. 4hen a criminal action and a separate civil action are filed subse'uent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this +ule shall

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San Beda College of Law 2010 Centralized Bar Operations continue to apply to the disposition of the reliefs in the petition (Sec. '3). Doc$rine o& co##and re!pon!i1ili$. in amparo proceeding!= -t would be inappropriate to apply to these proceedings the doctrine of command responsibility, as a form of criminal complicity through omission, for the criminal liability is beyond the reach of amparo. -t does not determine guilt nor pinpoint criminal culpability for the disappearance, threats thereof or e,tra7udicial killings; it determines responsibility, or at least accountability, for the enforced disappearance, threats thereof or e,tra7udicial killings for purposes of imposing the appropriate remedies to address the disappearance or e,tra7udicial killings. -f command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance or harassments complained of, so as to enable the 1ourt to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo (Ru2rico, et al. *. ,acapagal9Arro7o, et al., -.R. #o. 1636/1, Fe2ruar7 16, '(1(). No$e= )he writ of amparo, in its present form, is confined only to these two instances of .e,tralegal killings/ and enforced disappearances/ (Re*. Fr. Re7es *. $ourt o+ Appeals, et al., -.R. #o. 16'141, 1ecem2er 3, '((0). -t is now clear that for the protective writ of amparo to issue, allegation and proof that the persons sub7ect thereof are missing are not enough. -t must also be shown and proved by substantial evidence that the disappearance was carried out by, or with the authori&ation, support or ac'uiescence of, the *tate or a political organi&ation, followed by a refusal to acknowledge the same or give information on the fate or whereabouts of said missing persons, with the intention of removing them from the protection of the law for a prolonged period of time. *imply put, the petitioner in an amparo case has the burden of proving by substantial evidence the indispensable element of government participation (#a*ia *. Pardico, -.R. #o. 16554/, <une 10, '(1'). -t is not a writ to protect concerns that are purel7 propert7 or commercial (Dapu@, et al. *. <udge 1el Rosario, -.R. #o. 16'565, <une 1/, '((6). (A.,. #o. (6919149S$, <anuar7 '', '((6) (E++ecti*it7 Fe2ruar7 ', '((6) ;ri$ o& Habeas Data A remedy available to any person whose right to pri/ac. in li&e9 li1er$. or !ec"ri$. 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 (Sec. 1). )he writ in general is designed to safeguard individual freedom from abuse in the information age by means of an individual complaint presented in a constitutional court. *pecifically, it protects the image, privacy, honor, information, self determination, and freedom of information of a person (Dhe Philippine Supreme $ourtHs Bulletin, Benchmar) =nline #o*em2er '((/). Habeas data /i!(N(/i! amparo= 3a2eas data essentially allows families of victims of enforced disappearance to petition the courts to compel government and security officials to allow access to documents about the missing person. 4hile amparo denies state officials the defense of denial with which they normally evade petitions for habeas corpus that families of missing persons file, and compels them instead to e,ert efforts to find these missing persons or face sanctions (Festin, p.'13). No$e= )he writ of ha2eas data cannot be invoked in labor disputes where there is no unlawful violation of the right to life, liberty, or security (,eralco *. &im, -.R. #o. 165/40, =cto2er ., '(1(). 3a2eas data cannot be invoked when respondents in the petition for issuance of the writ are not gathering, collecting, or storing data or information ($astillo *. $ru@, -.R. #o. 16'14., #o*em2er '., '((0). ;%o #a. &ile= Any aggrieved party may file a petition for the writ of habeas data. Gowever, in cases of e,tralegal killings and enforced disappearances, the petition may be filed by( 1. Any member of the immediate family of the aggrieved party, namely( the spouse, children and parents; or 2. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or a++init7, in de+ault o+ those mentioned in the preceding paragraph (Sec. '). No$e= Hnlike in amparo, human rights organi&ations or institutions are no longer allowed to file the petition.

R ULE

ON

W RIT OF H ABEAS D ATA

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San Beda College of Law 2010 Centralized Bar Operations ;%ere $o &ile= 1. Regional Drial $ourt where the petitioner or respondent resides, or that which has 7urisdiction over the place where the data or information is gathered, collected or stored, at the option o+ the petitioner. 2. Supreme $ourt or the $ourt o+ Appeals or the Sandigan2a7an when the action concerns public data files of government offices (Sec. 3). ;%ere re$"rna1le= 4hen issued by( 1. )he RD$ or an7 Audge thereo+ 6 returnable before such court or 7udge 2. $A or the Sandigan2a7an or an7 o+ its Austices 6 before such court or any 7ustice thereof, or to any +egional )rial 1ourt of the place where the petitioner or respondent resides, or that which has 7urisdiction over the place where the data or information is gathered, collected or stored. 3. S$ or an7 o+ its Austices 6 before such 1ourt or any 7ustice thereof, or before the 1ourt of Appeals or the *andiganbayan or any of its 7ustices, or to any +egional )rial 1ourt of the place where the petitioner or respondent resides, or that which has 7urisdiction over the place where the data or information is gathered, collected or stored (Sec. 5). No$e= )he writ of ha2eas data shall be enforceable an7"here in the 2hilippines. Doc>e$ Fee!= 0o docket and other lawful fees shall be re'uired from an indigent petitioner (Sec. .). No$e= A petition for a writ of habeas data must be /eri&ied. Con$en$! o& $%e pe$i$ion 'P(MALRO* 1. Personal circumstances of the petitioner and respondent; 2. )he #anner the right of privacy is violated or threatened; 3. Actions and recourses taken by petitioner to secure the date or information; 4. Location of the files, registers or database, the government office, person in charge, in possession and control of the data, if known; . Reliefs prayed for; and !. Other relevant reliefs as are 7ust J e'uitable (Sec. 4). I!!"ance o& $%e 0ri$= Hpon the filing of the petition, the court, 7ustice or 7udge shall immediately order the issuance of the writ if on its face it ought to issue. 1lerk of court >191? shall issue the writ under the seal of the court and cause it to be ser*ed "ithin three (3) da7s +rom the issuance; or, in case of urgent necessity, the 7ustice or 7udge may issue the writ under his or her own hand, and may deputi&e any officer or person serve it ($=$Hs re+usal to issue the "rit $ontempt "ithout preAudice to other disciplinar7 actions) (Secs. / M 11). )he writ shall also set the date and time for summar7 hearing of the petition which shall not 2e later than ten (1() "or)ing da7s +rom the date o+ its issuance (Sec. 14). Re$"rn= Respondent shall file a *eri+ied "ritten return together with supporting a++ida*its within +i*e (.) "or)ing da7s from service of the writ, which period may be reasonably e,tended by the 1ourt for 7ustifiable reasons (-eneral 1enial o+ the allegations in the petition is not allo"ed) (Sec. 1/). Con$en$! o& re$"rn= )he lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others, 2. -n case of respondent in charge, possession or control of the data or information sub7ect of the petition( a. A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection. b. )he steps of actions taken by the respondent to ensure the security and confidentiality of the data or information, c. )he currency and accuracy of the data or information held. 3. 9ther allegations relevant to the resolution of the proceeding (Sec. 1().
1.

E&&ec$ o& &ail"re $o &ile a re$"rn= )he court shall proceed to hear the petition e, parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion re'uires the petitioner to submit evidence (Sec. 15). No$e= :aking a false return, or refusing to make a return; or any person who otherwise disobeys or resists a lawful process or order of the court shall be punished by contempt (Sec. 11). De&en!e! a/aila1le $o re!ponden$ 1. 0ational security; 2. *tate secrets; 3. 2rivileged communications;

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San Beda College of Law 2010 Centralized Bar Operations 4. 1onfidentiality of the source of information of media and others (Sec. 1'). No$e= Gearing in chambers may be conducted where the respondent invokes the abovementioned defenses (Sec. 1'). Pro%i1i$ed pleading! and #o$ion! 1. :otion to dismiss; 2. :otion for e,tension of time to file return, opposition, affidavit, position paper and other pleadings; 3. Bilatory motion for postponement; 4. :otion for a bill of particulars; . 1ounterclaim or cross3claim; !. )hird3party complaint; ". +eply; #. :otion to declare respondent in default; $. -ntervention; 1%.:emorandum; 11.:otion for reconsideration of interlocutory orders or interim relief orders; and 12.2etition for certiorari, mandamus or prohibition against any interlocutory order. (Sec. 13) $%e pri/ilege o& $%e 0ri$ means that the petition is found meritorious, the prayers therein are granted and the petitioner is granted the relief sought. Re$"rn o& !er/ice= )he officer who e,ecuted the 7udgment shall, within 3 days from its enforcement, make a 1erified return to the court. Con$en$! o& $%e re$"rn o& !er/ice 1. Aull statement of the proceedings under the writ; and 2. 1omplete inventory of the database or information, or documents or articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent. 3. *tatement by the officer how the 7udgment was enforced and complied with by the respondent; and 4. All the ob7ections of the parties regarding the manner and regularity of the service of the writ (Sec. 1/). )earing on o&&icerG! re$"rn= )he court shall set the date with due notice to the parties Appeal= 4ithin +i*e >.) da7s to appeal to the S$ under Rule 5. and may raise Cuestions o+ +act or la" or 2oth. In!$i$"$ion o& !epara$e ac$ion!= Ailing of a petition for the writ of ha2eas data shall not preclude the filing of separate criminal, civil or administrative actions (Sec. '(). Con!olida$ion= 1. 4hen a criminal action is filed su2seCuent to the filing of a petition for the writ, the latter shall 2e consolidated "ith the criminal action. 2. 4hen a criminal action and a separate ci*il action are filed subse'uent to a petition for a writ of ha2eas data, the petition shall be consolidated with the criminal action. A+ter consolidation, the procedure under this +ule shall continue to govern the disposition of the reliefs in the petition. Ihen a criminal action has 2een commenced, no separate petition +or the "rit shall 2e +iled. )he relie+ under the "rit shall be available to an aggrieved party 27 motion in the criminal case. )he procedure under this +ule shall govern the disposition of the reliefs available under the writ of ha2eas data (Sec. '1).

)earing Summar7 but the 7udge may call a preliminar7 con+erence to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. ;%en a co"r$ #a. %ear $%e pe$i$ion in c%a#1er! 4here the respondent invokes the defense that( 1. )he release of the data or information in 'uestion shall compromise national security or state secrets; or 2. )he data or information cannot be divulged to the public due to its nature or privileged character. J"dg#en$= 1ourt to render 7udgment within ten (1() da7s from the time the petition is submitted for decision. -f the allegations in the petition are proven by su2stantial e*idence, the court shall en7oin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be 7ust and e'uitable otherwise, the privilege of the writ shall be denied. Hpon its finality, 7udgment en+orced "ithin +i*e (.) "or)ing da7s. ran$ o& $%e 0ri$ /!. ran$ o& $%e pri/ilege o& $%e 0ri$= )he gran$ o& $%e 0ri$ refers to the decision of the court to give due course to the petition, re'uire respondents to file their return and set the petition for hearing. )he gran$ o&

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San Beda College of Law 2010 Centralized Bar Operations See $omparati*e $hart o+ 3a2eas $orpus, Irit o+ Amparo and 3a2eas 1ata on Page '/( )he +)1 of the province where the petitioner has been residing for 3 years prior to the filing of the petition. A change of name is a proceeding in rem. Durisdiction to hear and determine the petition for change of name is ac'uired after due publication of the order containing certain data (Secan Jo) *. Repu2lic o+ the Philippines, supra). )he *tate has an interest in the names borne by individuals and entries for purposes of identification, and that a change of name is a pri/ilege and no$ a rig%$9 so that before a person can be authori&ed to change his name given him either in his certificate of birth or civil registry, he must show proper or reasonable cause, or any compelling reason which may 7ustify such change (;n Re <ulian &in $arulasan Iang *. $e2u $it7 $i*il Registrar, -.R. #o. 1.0044, ,arch 3(, '((.). SECTION ,. CONTENTS OF PETITION 1. )hat petitioner is a 2ona +ide resident of the province where petition is filed for at least three years prior to the date of filing; 2. 1ause for change of name; 3. 0ame asked for; 4. All names by which petitioner is known (Secan Jo) *. Repu2lic o+ the Philippines, supra). )he petition shall be signed and verified by the person desiring his name changed or some other person in his behalf. +e'uirement of verification is a formal, and no$ a 7urisdictional re'uisite. -t is not a ground for dismissing petition. Hnder Rule 1(3, the word .person/ is a generic term which is not limited to Ailipino citi&ens, but embraces all natural persons. )he rule does not even re'uire that the citi&enship of the petitioner be stated in the petition (Eu *. Repu2lic o+ the Philippines, -.R. #o. &9'(6/5, ,a7 '., 1044). All of the applicant<s aliases must be stated in the petition<s title. 9therwise, it would be a fatal defect (-o $hiu Beng *. Repu2lic o+ the Philippines, -.R. #o. &9 '0./5, August 16, 10/'). J"ri!dic$ional re@"ire#en$! 1. )he verified petition should be published for three successive weeks in some newspaper of general circulation in the province; 2. ;oth the title or caption of the petition and its body shall recite(

R ULE #"3 C HANGE OF N AM E

Proced"re &or C%ange o& Na#e "nder R"le 164 2etition for 1hange of 0ame 1ourt order fi,ing the date and place of hearing 2ublication of the court order fi,ing the date and place of hearing, at least once a week for 3 successive weeks in a newspaper of general circulation Gearing on the 2etition Dudgment granting @ denying the change of name. 1opy of the 7udgment shall be served upon the civil registrar, who shall annotate the same

Applica1ili$. o& R"le 164 An alien can petition for a change of name but he must be domiciled in the 2hilippines >=ng 3uan Din *. Repu2lic o+ the Philippines, -.R. #o. &9'(00/, April '/, 104/). )he name that can be changed is the name that appears in the civil register, and not in the baptismal certificate or that by which the person is known in the community (#g Eao Siong *. Repu2lic o+ the Philippines, -.R. #o. &9 '(3(4, ,arch 31, 1044). 8egal separation is not a ground for the female spouse for a change of name under +ule 1%3 (&aperal *. Repu2lic o+ the Philippines, -.R. #o. &916((6, =cto2er 3(, 104'). A change of name granted by the court affects only a petitioner. A separate petition for change of name must be filed for his@her spouse and children (Secan Jo) *. Repu2lic o+ the Philippines, -.R. #o. &9'/4'1, August 3(, 10/3). *e, reassignment is not a valid ground to change one<s first name >applies to both +ule 1%3 and +.A. 0o. $%4#? (Sil*erio *. Repu2lic o+ the Philippines, -.R. #o. 1/5460, =cto2er '', '((/). SECTION 1. +ENUE

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San Beda College of Law 2010 Centralized Bar Operations a. b. sought; c. 0ew name asked for (Secan Jo) *. Repu2lic o+ the Philippines, supra.). 0ame@names or aliases of the applicant; 1ause for which the change of name is No$e= All the names or aliases must appear in the title or caption of the petition, because the reader usually merely glances at the title of the petition and may only proceed to read the entire petition if the title is of interest to him (Secan Jo) *. Repu2lic o+ the Philippines, supra). )he non3inclusion of all the names or aliases of the applicant in the caption of the order or in the title of the petition defeats the very purpose of the re'uired publication >Repu2lic o+ the Philippines *. Fosa, -.R. #o. &956/4', Septem2er 1', 1066). SECTION :. )EARIN ;%o #a. oppo!e $%e pe$i$ion 1. Any interested person; 2. )he +epublic of the 2hilippines through the *olicitor 5eneral or the proper provincial or city prosecutor. SECTION C. JUD MENT A change of name granted by the court affects only the petitioner. A separate petition for change of name must be filed for his wife or children (Secan Jo) *. Repu2lic o+ the Philippines, supra). A decree of adoption grants the adoptee the right to use the adopter<s surname, if change of first name is so desired, it must be prayed and alleged in the petition for adoption (Sec. 14, A.,. #o. ('949('9S$).

2etition should be filed by applicant upon reaching the age of ma7ority (Regalado, p. 101). Ra$io= A change of name is a matter of public interest >Secan Jo) *. Repu2lic o+ the Philippines, supra). SECTION 4. ORDER FOR )EARIN Gearing shall not be within 3% days prior to an election nor within 4 months a+ter the last pu2lication o+ notice o+ hearing. T%e co"r$ !%all pro#"lga$e an order= 1. +ecital of the purpose of the petition; 2. Ai, the date and place of hearing; and 3. Birect that a copy of the order be published before the hearing for once a week for three consecutive weeks in a newspaper of general circulation. E&&ec$ o& di!crepanc. in $%e pe$i$ion and p"1li!%ed order= )he defect in the petition and the order, as to the spelling of the name of the petitioner, is substantial, because it did not correctly identify the party to said proceedings >Dan *. Repu2lic o+ the Philippines, -.R. #o. &914365, April '4, 104'). ro"nd! &or c%ange o& na#e 'R(C)EN* 1. 0ame is ridiculous, tainted with dishonor or e,tremely difficult to write or pronounce; 2. Conse'uence of a change of status; e.g. legitimated child; 3. )abitual and continuous use and has been known since childhood by a Ailipino name, unaware of her alien parentage; 4. A sincere desire to adopt a Ailipino name to erase signs of former alienage, all in good faith and without pre7udicing anybody; or . Necessity to avoid confusion; Ti$le o& pe$i$ion #"!$ con$ain $%e &ollo0ing= 1. 9fficial name >birth certificate? 6 be very particular with the spelling because it may avoid or annul the proceedings; it is 7urisdictional; 2. All aliases; and 3. 0ame asked for.

SECTION 8. SER+ICE OF JUD MENT 1ivil +egistrar of the city or municipality where the court is situated shall be furnished with a copy of the 7udgment. Con!e@"ence o& a gran$ $o c%ange na#e= A mere change of name would not cause a change in one<s e,isting family relations, nor create new family rights and duties where none e,ists before. 0either would it affect a person<s legal capacity, civil status or citi&enship. 4hat would be altered is the word or group of words by which he is identified and distinguished from the rest of his fellow men (Ang $ha7 *. Repu2lic o+ the Philippines, -.R. #o. &9 '6.(/, <ul7 31, 10/(). No$e= 4hen the marriage ties or vinculum no longer e,ists as in the case of death of a husband or divorce as authori&ed by the :uslim 1ode, the widow or divorcee need not seek 7udicial confirmation of the change in her civil status in order to revert to her maiden name as the use of her former husband<s name is optional and not obligatory for her. 0either is she re'uired to secure 7udicial authority to use the surname of her husband after the

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San Beda College of Law 2010 Centralized Bar Operations marriage as no law re'uires it (Easin *. ShariHa 1istrict $ourt, -.R. #o. 05064, '3 Fe2ruar7 100.). 1. 9pen and continuous possession of status of a legitimate child; or 2. Any other means allowed by the +ules of 1ourt and other special laws (-ono9<a*ier *. $ourt o+ Appeals, -.R. #o. 111005, 1ecem2er '0, 1005). Art' -74' )he action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. -n these cases, the heirs shall have a period of five years within which to institute the action. Art' -7*' -llegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. )he action must be brought within the same period specified in Article 1/3, e,cept when the action is based on the second paragraph of Article 1/', in which case the action may be brought during the lifetime of the alleged parent.

R ULE #"4 V OLUNT ARY D ISSOLUTION C ORPORATIONS

OF

No$e= Bissolution of corporations should now be filed with the *ecurities and E,change 1ommission and is covered by Ditle N;?, Sections 11/ to 1'' of the 1orporation 1ode of the 2hilippines. A'0' 3o' ../--/.4/&C5 promulgated on #o*em2er '1, '(((, designated some +)1 branches nationwide (also known as $orporate courts) to try and decide *E1 cases enumerated under Sec. . o+ P.1. 0('9A.

R ULE #"5 J UDICIAL A PPROV AL OF VOLUNT ARY R ECOGNITION OF M INOR N ATURAL C HILDREN
No$e= )he matter of the +iliations o+ illegitimate children and the proof thereof is governed by Articles 1/' and 1/3, in relation to Article 1/., of the Aamily 1ode. +ol"n$ar. recogni$ion An admission of the fact of paternity or maternity by the presumed parent, e,pressed in the form prescribed by the 1ivil 1ode. -ts essence lies in the avowal of the parent that the child is his; the formality is added to make the admission incontestable, in view of the conse'uences (-apusan $hua *. $ourt o+ Appeals, -.R. #o. &954/54, ,arch 1.,100(). Art' -7,. )he filiation of legitimate children is established by any of the following( 1. )he record of birth appearing in the civil register or a final 7udgment; or 2. An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. -n the absence of the foregoing evidence, the legitimate filiation shall be proved by( 1. )he open and continuous possession of the status of a legitimate child; or 2. Any other means allowed by the +ules of 1ourt and special laws ('4.a, '44a, '4/a). -n effect, 2"dicial appro/al o& /ol"n$ar. recogni$ion i! re@"ired onl. 0%en &ilia$ion i! pro/ed 1.=

R ULE #"6 C ONSTITUTION OF F AM ILY H OM E

No$e= )he rule has already been repealed by the Aamily 1ode, which took effect on August 3, 1$##. )here is no need to constitute the family home 7udicially or e,tra7udicially. -f the family actually resides in the premises, it is, automatically considered as a family home as contemplated by law (,odeCuillo *. Bre*a, -.R. #o. 643.. ,a7 31, 100(). Fa#il. %o#e 1onstituted on a house and lot from the time it is occupied as a family residence. )he family home, constituted 7ointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated (Art. 1.', #$$).

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San Beda College of Law 2010 Centralized Bar Operations )he family home is deemed constituted on a house and lot from the time it is occupied as a family residence. Arom the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is e,empt from e,ecution, forced sale or attachment e,cept as hereinafter provided and to the e,tent of the value allowed by law (Art. 1.3, #$$). )he beneficiaries of a family home are( 1. )he husband and wife, or an unmarried person who is the head of a family; and 2. )heir parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support (Art. 1.5, #$$). )he family home shall be e,empt from e,ecution, forced sale or attachment e,cept( 1. Aor nonpayment of ta,es; 2. Aor debts incurred prior to the constitution of the family home; 3. Aor debts secured by mortgages on the premises before or after such constitution; and 4. Aor debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building (Art. 1.., #$$). 9rder of hearing must be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province or city where absentee resides and declaration of absence will only take effect ! months after its publication in a newspaper of general circulation designated by court and in the 9fficial 5a&ette.

0otice of petition for guardianship for non( re!iden$ may be published when court deems it proper.

Proced"re! in $%e R"le on A1!en$ee! 2etition for Appointment of +epresentative

Application for Beclaration of absence and appointment of )rustee or Administrator

)ermination of Administration@ )rusteeship ;%ere $o &ile= +)1 where the absentee resided before his disappearance Appoin$#en$ o& repre!en$a$i/e= 4hen a person disappears, whereabouts are unknown, leaves no agent or upon e,piration of power of agent, during the first two >2? years. Declara$ion o& a1!ence and appoin$#en$ o& ad#ini!$ra$or= 4hen a person disappears and still without any news since the receipt of the last news about him, after two >2? years if without administrator or after five > ? years if with administrator. SECTION 1' APPOINTMENT OF REPRESENTATI+E Dhis rule is 2ased on Articles 361 and 36' o+ the $i*il $ode. 4hen a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the 7udge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary (Art. 361, #$$). )his same rule shall be observed when under similar circumstances the power conferred by the absentee has e,pired. (Art. 361, #$$)

R ULE #"7 A BSENTEES

A1!en$ee Inco#pe$en$ -ncludes persons suffering the penalty of civil interdiction or who are hospitali&ed lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, and persons who are unable to take care of themselves and manage their property by reason of age, disease, weak mind and other similar causes.

9ne who disappears from his domicile and his whereabouts being unknown and without having left an agent to administer his property or the power of agent has e,pired.

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San Beda College of Law 2010 Centralized Bar Operations )he appointment referred to in the preceding article having been made, the 7udge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians (Art. 3''). SECTION ,. DECLARATION OF ABSENCED ;)O MAPETITION Dhis rule is 2ased on Articles 365 and 36. o+ the $i*il $ode. Art' 4%(' )wo years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared (Art. 365, #$$). ;%o #a. &ile a pe$i$ion &or appoin$#en$ o& ad#ini!$ra$or or $r"!$ee= 1. )he spouse present; 2. )he heirs instituted in a will, who may present an authentic copy of the same; 3. )he relatives who would succeed by the law of intestacy; 4. )hose who have over the property of the absentee some right subordinated to the condition of his death (Art. 36., #$$). P"rpo!e o& pe$i$ion= )o appoint an administrator over the properties of the absentee. Gence, if the absentee left no properties, such petition is unnecessary. 9ne<s dis'ualification as an heir of the absentee does not inhibit him or her from petitioning for a declaration of absence or to be appointed as an administrator of the absentee<s estate (#oCuera *. ?illamor, -.R. #o. 65'.(, <ul7 '(, 100'). -t is not necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for administration (Re7es *. AleAandro, -.R. #o. &93'('4, <anuar7 14, 1064). SECTION 4. CONTENTS OF PETITION 1. )he 7urisdictional facts; 2. )he names, ages, and residences of the heirs instituted in the will, copy of which shall be presented, and of the relatives who would succeed by the law of intestacy; 3. )he names and residences of creditors and others who may have any adverse interest over the property of the absentee; 4. )he probable value, location and character of the property belonging to the absentee. Con!e@"ence 2etition for Appointment of +epresentative >unless the absentee left an agent to administer his property? 2etition for declaration of absence and appointment of administrator or trustee may be filed. 1onsidered dead for all intents and purposes e,cept for purposes of succession >if disappeared under e,traordinary circumstances, considered dead for all purposes, even succession?; Aor purposes of :arriage( 4 years continuous absence shall be sufficient for present spouse to remarry, 2 years only under e,traordinary circumstance

Period o& A1!ence %32 years 2 years to " years > years to " years in case the absentee left an agent?

;eyond " years >absence of 4 years under e,traordinary circumstance?

SECTION :. TIME OF )EARIN D NOTICE AND PUBLICATION T)EREOF 1opies of the notice of the time and place fi,ed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least ten >1%? days before the day of the hearing. -t shall be published once a week for three >3? consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where the absentee resides, as the court shall deem best. SECTION C' OPPOSITION Oppo!i$or #"!$= 1. *tate in writing his grounds therefor; 2. *erve a copy thereof to petitioner and other interested parties on or before the hearing. SECTION 8' PROOF AT )EARIN D ORDER Art' 4%+. )he 7udicial declaration of absence shall not take effect until si, months after its publication in a newspaper of general circulation. SECTION 3. ;)O MA- BE APPOINTED Appoin$#en$ o& repre!en$a$i/e<$r"!$ee= 1. *pouse present >preferred?; or 2. Any competent person.

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San Beda College of Law 2010 Centralized Bar Operations SECTION 7. TERMINATION OF ADMINISTRATION ro"nd! &or $er#ina$ion o& $%e ad#ini!$ra$ion 1. Absentee appears personally or through an agent; 2. Absentee<s death is proven and heirs appear; 3. )hird person appears showing that he ac'uired title over the property of the absentee (Art. 360, #$$). eneral r"le= 0o independent action for Beclaration of 2resumption of Beath. Exception= )he need for declaration of presumptive death for purposes of remarriage (Art. 51, Famil7 $ode). No$e= )he Famil7 $ode provides that for the purpose of contracting a second marriage, the present spouse must file a summary proceeding for the declaration of the presumptive death of the absentee, without pre7udice to the latter<s reappearance. Pro/i!ion! o& $%e re/i!ed r"le! on e/idence on pre!"#p$ion o& dea$%= )hat after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, e,cept for those of succession. )he absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. -f he disappeared after the age of seventy3five years, an absence of five years shall be sufficient in order that his succession may be opened. )he following shall be considered dead for all purposes including the division of the estate among the heirs( 1. A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for four years since the loss of the vessel or aircraft; 2. A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; 3. A person who has been in danger of death under other circumstances and whose e,istence has not been known for four years; 4. -f a married person has been absent for four consecutive years, the spouse present may contract a subse'uent marriage if he or she has a well3founded belief that the absent spouse is already dead. -n case of disappearance, where there is danger of death under the circumstances hereinabove provided an absence of only two years shall be sufficient for the purpose of contracting a subse'uent marriage. Gowever, in any case, before marrying again, the spouse present must institute a summary proceeding as provided in the Aamily 1ode and in the rules for a declaration of presumptive death of the absentee, without pre7udice to the effect of reappearance of the absent spouse (Sec. 3 8":, Rule 131)..

R ULE #"8 C ANCE LAT ION OR C ORRECTION OF E NTRIES IN THE C IVIL R EGISTRY
Proced"re &or cancella$ion or correc$ion o& en$rie! "nder Rule -.%
2etition for 1ancellation or 1orrection of any entry relating to an act, event order or decree concerning the civil status 1ourt order fi,ing the date and place for Gearing 2ublication of the court order at least once a week for 3 successive weeks in a newspaper of general circulation, with reasonable notice given to persons named in the petition Ailing of opposition by the civil registrar and any person having@claiming interest under the entry whose cancellation@correction is sought, within 1 days from notice of the petition or from the last date of publication of the notice Gearing on the petition Dudgment granting@denying the petition. 1opy of SECTION 1. ;)O MAPETITION the 7udgment shallFILE be served upon the civil Any person interested in any act, event, order or decree registrar, who shall annotate the same concerning the civil status of persons recorded in the civil registry.

;%ere &iled= +)1 of the province where the corresponding civil registrar is located. Proceeding! "nder R"le 167 #a. 1e !"##ar. or ad/er!arial( 1. S"##ar. 6 when the correction sought to be made is a mere clerical error (no" go*erned 27 R.A. #o. 0(56). 2. Ad/er!arial 3 where the rectification affects civil status, citi&enship or nationality of a party or any other substantial change. Re@"i!i$e! o& ad/er!arial proceeding! 1. 2etition is filed before the court having 7urisdiction over the impleaded civil registrar and all interested parties; (Sec.3)

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San Beda College of Law 2010 Centralized Bar Operations 2. )he order of the hearing must be published once a week for three consecutive weeks; 3. 0otice thereof must be given to the 1ivil +egistrar and all parties affected thereby; 4. )he civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within 1 days from notice of the petition or from the last date of publication of such notice, file his opposition thereto; . Aull blown trial. 2roceedings for the correction of entries should not be considered as establishing one<s status in a manner conclusively beyond dispute. )he status corrected would not have a superior 'uality for evidentiary purposes. )here is no increase or diminution of substantive right ($hiao Ben &im *. Fosa, -.R. #o. &9 5('.', 1ecem2er '0, 1064). SECTION ,. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION 'BMD LA+LAA( NEC J+C* 1. Births; 2. Marriages; 3. Deaths; 4. Legal separations; . Dudgments of annulments of marriage; !. Dudgments declaring marriages /oid from the beginning; ". Legitimations; #. Adoptions; $. Acknowledgments of natural children; 1%. Naturali&ation; 11. Election, loss or recovery of citi&enship; 12. Civil interdiction; 13. Judicial determination of filiation; 14. +oluntary emancipation of a minor; 1 . Change of name. Even substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceedings (Repu2lic o+ the Philippines *. ?alencia, -.R. #o. &93'161, ,arch ., 1064). Ad/er!arial proceeding 9ne that has opposing parties; contested as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it (Repu2lic *. ?alencia, supra). Rule 1(6, when all the procedural re'uirements thereunder are followed, is the appropriate adversary proceeding to effect substantial correction and changes in entries of the civil register (&ee *. $ourt o+ Appeals, -.R. #o. &911636/, =ct. 11, '((1). ;%e$%er a pe$i$ion "nder R"le 167 can 1e gran$ed 1. rea!on o& J!e? c%angeK or J!ec rea!!ign#en$K= 0o. *ince the statutory language of the 1ivil +egister 8aw was enacted in the early 1$%%s and remains unchanged, it cannot be argued that the terms .se,/ as used then is something alterable through surgery or something that allows a post3operative male3to3female transse,ual to be included in the category of .female/ (Sil*erio *. Repu2lic o+ the Philippines, -.R. #o. 1/5460, =cto2er '', '((/). Congeni$al Adrenal ).perpla!ia 'CA)* )his condition causes the early or .inappropriate/ appearance of male characteristics. , , ,. 1AG is one of many conditions that involves interse, anatomy. Buring the twentieth century, medicine adopted the term .interse,uality/ to apply to human beings who cannot be classified as either male or female. )he term is now of widespread use. According to 4ikipedia, interse,uality .is the state of a living thing of a gonochoristic species whose se, chromosomes, genitalia, and@or secondary se, characteristics are determined to be neither e,clusively male nor female. An organism with interse, may have biological characteristics of both male and female se,es/ (Repu2lic o+ the Philippines *. <enni+er $agandahan, -.R. #o. 1444/4, Septem2er 1', '((6). Principle! laid do0n 1. $%e SC in Republic of the 6hilippines 1' Ca!andahan= 1. 4here the person is biologically or naturally interse,, the determining factor in his gender classification would be what the individual, having reached the age of ma7ority, with good reason thinks of his@her se,; se,ual development in cases of interse, persons makes the gender classification at birth inconclusive 6 it is at maturity that the gender of such persons is fi,ed. 2. )o the person with 1AG belongs the human right to the pursuit of happiness and of health, and to him should belong the primordial choice of what courses of action to take along the path of his se,ual development and maturation. 3. )here is merit in the change of name of a person with 1AG where the same is the conse'uence of the recognition of his preferred gender. SECTION 4. PARTIES 1. 1ivil registrar; 2. All persons who have or claim any interest which would be affected thereby.

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San Beda College of Law 2010 Centralized Bar Operations SECTION :. NOTICE AND PUBLICATION 9rder of hearing shall be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province and all persons named in the petition shall be notified. SECTION C. OPPOSITION )he following are entitled to oppose the petition( 1. )he 1ivil +egistrar; and 2. Any person having or claiming any interest under the entry whose cancellation or correction is sought. 4ithin 1 days from notice of the petition or from date of last publication. SECTION 8. EAPEDITIN PROCEEDIN S )he court may also grant preliminary in7unction for the preservation of the rights of the parties pending such proceedings' SECTION 3. ORDER )he 1ivil +egistrar shall be given a copy of the 7udgment and annotate the same on his record. Clerical or $.pograp%ical error A mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other e,isting record or records( Pro*ided, ho"e*er, )hat no correction must involve the change of nationality, age or status of the petitioner (Sec. ' 83: R.A. #o. 0(56, as amended 27 Sec. ' R.A. #o. 1(1/'). No$e= -t may be very well said that +epublic Act 0o. $%4# is 1ongressN response to the confusion wrought by the failure to delineate as to what e,actly is that so3 called summar7 procedure for changes or corrections of a harmless or innocuous nature as distinguished from that appropriate ad*ersar7 proceeding for changes or corrections of a substantial kind. )he obvious effect is to remo*e +rom the am2it o+ Rule 1(6 the correction or changing o+ clerical or t7pographical errors in entries o+ the ci*il register. Gence, what are left for the scope of operation of +ule 1%# are substantial changes and corrections in entries of the civil register (&ee *. $ourt o+ Appeals, -.R. #o. 11636/, =cto2er 11, '((1). 2etition for change of name (Rule 1(3) and petition for cancellation or correction of entries (Rule 1(6) are di!$inc$ proceeding!. Gence, a party cannot change his name and correct an entry in a single petition without satisfying the 7urisdictional re'uirements (3errera, p..45). )he cancellation or correction of entries in the 1ivil +egistry is a proceeding in rem. *trict compliance with all 7urisdictional re'uirements, particularly on publication, is essential in order to vest the court with 7urisdiction (Regalado, p. 103). De&ini$ion o& $er#!= 1. Fir!$ na#e 6 refers to a name or nickname given to a person which may consist of one or more names in addition to the middle and last names. 2. Migran$ pe$i$ioner 6 refers to a petitioner whose present residence or domicile is different from the place where the civil registry record to be corrected was registered. 3. Record(>eeping ci/il regi!$rar 6 refers to the 1ity@:unicipal 1ivil +egistrar in whose archive is kept the record, which contains the error to be corrected or the first name to be changed. )his term shall be used only in cases involving migrant petitioner. 4. Pe$i$ion(recei/ing ci/il regi!$rar 6 refers to the 1ity@:unicipal 1ivil +egistrar of the city or municipality where the petitioner resides or is domiciled and who

R EPUBLIC A CT N O & !"48

Repu2lic Act #o. 0(56 or the .1lerical Error Act/ which was passed by 1ongress on Aebruary #, 2%%1 amended Articles 3/4 and 51' o+ the #e" $i*il $ode. Repu2lic Act #o. 1(1/' or .An Act Aurther Authori&ing the 1ity or :unicipal 1ivil +egistrar or the 1onsul 5eneral to 1orrect 1lerical or )ypographical Errors in the Bay and :onth in the Bate of ;irth or *e, of a 2erson Appearing in the 1ivil +egister 4ithout 0eed of a Dudicial 9rder amended *ections 1, 2, and # of +epublic Act 0o. $%4#. Ca!e! Co/ered= 1. 1lerical or typographical errors and change of first name or nickname 2. 1lerical or typographical errors and change of the day and month in the date of birth 3. 1lerical or typographical errors and change of se, of a person where it is patently clear there was clerical or typographical error or mistake in the entry (Sec. 1, R.A. #o. 0(56, as amended 27 R.A. #o. 1(1/'). eneral R"le= 0o entry in a civil register shall be changed or corrected without a 7udicial order. Exception= 1lerical or typographical errors and change of first name or nickname 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.

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San Beda College of Law 2010 Centralized Bar Operations receives the petition on behalf of the +ecord3keeping 1ivil +egistrar in the case of a migrant petitioner. ro"nd!= 1. )he petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or e,tremely difficult to write or pronounce; 2. )he new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community; or 3. )he change will avoid confusion (Sec. 5). ;%o #a. &ile= Any person of legal age, having direct and personal interest in the correction of a clerical or typographical error in an entry and@or change of first name or nickname in the civil register (Sec. 3). Per!on 0i$% direc$ and per!onal in$ere!$= 1. Ge is the owner of the record; or 2. )he owner<s spouse, children, parents, brothers, sisters, grandparents, guardian; or 3. Any other person duly authori&ed by law or by the owner of the document sought to be corrected. 2rovided, that when a person is a minor or physically or mentally incapacitated( petition may be filed on his behalf by his spouse, or any of his children, parents, brothers, sisters, grandparents, guardians, or persons duly authori&ed by law (Sec. 3). 3. )he erroneous entry which are sought to be corrected; 4. All names by which petitioner is known (Secan Jo) *. Repu2lic o+ the Philippines, supra). Anne?e! $o $%e pe$i$ion 1. A certified true copy of the certificate or of the page of the registry book containing the entries sought to be corrected or changed; 2. At least 2 public or private documents showing the correct entries upon which correction or change shall be based; 3. 9ther documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition; 4. Aor correction of erroneous entry of date of birth or the se, of a person( earliest school record or earliest school documents such as, but not limited to, medical records, baptismal certificate and other documents issued by religious authorities; . Aor change of gender corrected( certification issued by an accredited government physician attesting to the fact that the petitioner has not undergone se, change or se, transplant. !. 1ertification from appropriate law enforcement agencies that the petitioner has no pending case or no criminal record (Sec. . as amended 27 Sec. 3, R.A. #o. 1(1/'). P"1lica$ion re@"ire#en$= )he petition must be published at least once a week for 2 consecutive weeks in a newspaper of general circulation. ;%ere $o &ile= 1. 8ocal civil registry office or 1lerk of the *hari<a 1ourt where the record being sought to be corrected or changed is kept; 2. ;+ petitioner has alread7 migrated to another place in the countr7 petition3receiving civil registrar of the place where the interested party is presently residing or domiciled (Rule 5, ;mplementing Rules M Regulations)> 3. $iti@ens o+ the Philippines "ho are presentl7 residing or domiciled in +oreign countries nearest 2hilippine 1onsulates (Sec. 3). Con$en$! o& $%e pe$i$ion= )he petition shall be in the form of an affidavit, subscribed and sworn to before any person authori&ed by the law to administer oaths and shall set forth( 1. )he facts necessary to establish the merits of the petition; 2. )hat the petitioner is competent to testify to the matters stated; 1opies of the petition shall be given to( the city or municipal civil registrar, or the consul general; the 9ffice of the 1ivil +egistrar 5eneral; and the petitioner (Sec. .). D"$ie! o& $%e ci$.<#"nicipal ci/il regi!$rar or $%e Con!"l eneral= 1. E,amine the petition and its supporting documents; 2. 2ost the petition in a conspicuous place provided for that purpose for 1% consecutive days after he finds the petition and its supporting documents sufficient in form and substance; 3. Act on the petition and render a decision not later than working days after the completion of the posting and@or publication re'uirement; 4. )ransmit a copy of his decision together with the records of the proceedings to the 9ffice of the 1ivil +egistrar 5eneral within working days from the date of the decision (Sec. 4). D"$ie! and po0er! o& $%e ci/il regi!$rar general

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San Beda College of Law 2010 Centralized Bar Operations 1. 4ithin 1% working days from receipt of the decision granting the petition, the 1ivil +egistrar 5eneral shall e,ercise the power to impugn such decision by way of an ob7ection based on the following grounds( a. )he error is not clerical or typographical; b. )he correction of entries is substantial or controversial as it affects the civil status of a person; and c. )he basis used in changing the first or nick name of a person does not fall under those provided by law. 2. )he 1ivil +egistrar 5eneral shall immediately notify the city@municipal civil registrar or the consul general of the action taken on the decision. 3. Ge has appellate powers over the decision of the local civil registrars or consul general (Sec. /). -f the 1ivil +egistrar 5eneral fails to e,ercise his power to impugn within the prescribed period, the decision of the city@municipal civil registrar or the consul general shall become final and e,ecutor (Sec. /). E&&ec$ o& appro/ing $%e pe$i$ion &or c%ange o& na#e= )he change shall reflected in the birth certificate by Affidavit withbe supporting documents >3 copies? way of marginal annotation. -n case there are other civil registry records of the same person which are affected by such change, the of approving change of first Ailed with the 1ity the or :unicipal civil -f change of decision name in the birth certificate, upon becoming final and registrar >8ocal 1ivil +egistrar first name@ e,ecutory, to orbe used5eneral as basis in O81+P? 1onsul nickname( shall be sufficient changing the first name of the same person in his other 1.)wo weeks affected records without need for filing a similar petition. -n publication 1%3day posting by the 81+ or such a case, the successful petitioner shall file a re'uest 2.1ertification 1onsul 5eneral inthat writing with the concerned 81+ or 1onsul to make such there is no marginal (Rule 1', ;mplementing Rules M pending annotation case or criminal Regulations 0(56, <ul7 '5, '((1). 81+ or 1onsul 5eneral( days to record A1) on the application A/ail#en$ o& $%e pri/ilege= )he correction of clerical or typographical error shall be availed of only once with respect to a particular entry or entries in the Benies same civil 5rants registry record. -n case of change of first name or nickname in the birth certificate, the privilege shall be availed of only once, the provisions of +ule 12 )ransmit decision J sub7ect records to to 1ivil of the -mplementing +ules J +egulations (Rule /, ;RR +egistrar 5eneral within working days 0(56). Pa.#en$ o& Fee!= orimpugned, municipalthe civil registrar or 4ithin 1% days, the )he city -f not the consul general shall be becomes authori&ed to collect 1ivil +egistrar decision reasonable fees as a condition for and accepting the petition. 5eneral may &inal i#p"gn the . the payment of An indigent petitioner shall bee?ec"$or. e,empt from decision way6of said fee. by (Sec. as amended 27 Sec. 5, R.A. #o. 1(1/') ob7ection Proced"re= Rep"1lic Ac$ No. 56:7
0otify the 81+ or 1onsul 5eneral with the adverse decision 81+ or 1onsul 5eneral shall notify petitioner :otion for +econsideration with 1ivil +egistrar 5eneral Appeal to 1ivil +egistrar 5eneral

No$e= -n case of a migrant petitioner, the petition shall be posted first at the office of the petition3receiving civil registrar for 1% consecutive days before sending it to the record3keeping civil registrar. Hpon receipt, the +=1+ shall post again the petition in his office for another 1% consecutive days (Rule 0, ;RR 0(56). -n the case where a person<s civil registry record or records were registered in the 2hilippines or in any of the 2hilippine 1onsulates, but the persons presently resides or is domiciled in a foreign country, posting and@or publication, as the case may be, shall be done in the place where the petition is filed and in the place where the record sought to be corrected is kept (Rule 0, ;RR 0(56). ro"nd! &or i#p"gning $%e deci!ion gran$ing $%e pe$i$ion 1. Error is not clerical or typographical; 2. 1orrection of an entry or entries in the civil register is substantial or controversial as it affects the civil status of a person; or

Aile appropriate petition with the 75 proper court

San Beda College of Law 2010 Centralized Bar Operations 3. )he basis used in changing the first name or nickname does not fall under any of the grounds. See $omparati*e $hart Rule 1(3, Rule 1(6, R.A. #o. 0(56 on Page '.'. Order! $%a$ are no$ appeala1le 1. 9rder directing administrator to take action to recover amount due to the estate; 2. 9rder made in administration proceedings relating to inclusion or e,clusion of items of property in the inventory of e,ecutor or administrator; 3. 9rder appointing special administrator. SECTION ,. AD+ANCE DISTRIBUTION IN SPECIAL PROCEEDIN S R"le on ad/ance di!$ri1"$ion= 0otwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court( 1. -n its discretion; and 2. Hpon such terms as it may deem 7ust and proper; 3. 2ermit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the condition in Rule 0(. 4. )he distributees must post a bond as provided under Section 1, Rule 0( (PeBa and #olasco &a" =++ice *. &$# $onstruction $orp., -.R. #o. 1/56/3, August '4, '((6). Appeal In Ordinar. Ci/il Ac$ion 1 days. 0otice of Appeal and docket fees. 0o e,tension. Appeal In Special Proceeding! 3% days. +ecord on Appeal and docket fees. :aybe e,tended on meritorious grounds.

R ULE #"! A PPE ALS IN S PECIAL P ROCEEDINGS

Dhe period o+ appeals in Special Proceedings shall 2e 3( da7s and a record on appeal is reCuired. (3errera, p. ./6) SECTION 1. ORDERS OR JUD MENTS FROM ;)IC) APPEALS MA- BE TAFEN An interested person may appeal in special proceedings from such order or 7udgment rendered which( 'ADASCO* 1. Allows or disallows a will; 2. Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; 3. Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; 4. Settles the account of an e,ecutor, administrator, trustee or guardian; . Constitutes, in the proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, e,cept that no appeal shall be allowed from the appointment of a special administrator; and !. -s the final order or 7udgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting or denying a motion for a new trial or for reconsideration. No$e= +ule 1%$ enumerates the cases wherein multiple appeals are allowed and a record on appeal is re'uired for an appeal to be perfected. )he petition for the declaration of presumptive death of an absent spouse not being included in the enumeration, petitioner<s mere notice of appeal suffices. )he reason is that said petition is a summary proceeding under the Aamily 1ode, and not a special proceeding under the +ules of 1ourt (Repu2lic o+ the Philippines *. $ourt o+ Appeals, -.R. #o. 1434(5, ,a7 4, '((.). ;%o #a. appealB An interested person whose interest must be material and direct, not merely indirect or contingent (Deotico *. 1e ?at, -.R. #o. &916/.3, ,arch '4, 104.).

No$e= )he appeal shall affect every order, decree, or 7udgment appealed from, and not merely the interest which the appellants may have therein (Panis *. Eangco, -.R. #o. &9'054(, 1ecem2er '', 10'6). M"l$iple appeal! A.Se$$le#en$ o& $%e E!$a$e 1. 9rder admitting the will to probate; 2. Appointment of e,ecutor or administrator; 3. Appeal from the order concerning a contested claim; 4. 9rder determining the heirs. . Appeal by surety of an e,ecutor or administrator, admitted as party to an accounting made by such e,ecutor or administrator, in an order of the court approving or disapproving such accounting (Saguinsin *. &inda7ag, -.R. #o. &91//.0, 1ecem2er 1/, 104' )> !. Appeal by heir from money claim (Fluemer *. 3ix, -.R. #o. &93'434, ,arch 1/, 103(); ". 9rder for license to sell (Santos *. Roman $atholic Bishop o+ #ue*a $aceres, -.R. #o. &9'1'60, April .,10'5); #. 9rder against bond (,oran); and

76

San Beda College of Law 2010 Centralized Bar Operations $. 9rder to contract obligation (1e BorAa Encarnacion, -.R. #o. &951/0, ,a7 3(, 10.1). *.

B. "ardian!%ip 1. 9rder annulling appointment of guardian (Aleman7 *. S"eene7, -.R. #o. 15(3, ,arch 10, 10(5); and 2. 9rder removing a guardian (=larte *. EnriCue@, -.R. #o. &914(06, =cto2er 31, 104(). Certiorari and mandamus are no$ !"1!$i$"$e! &or appeal Gaving lost the remedy to appeal due to the parties< own neglect, they cannot seek redress by certiorari and mandamus, it not appearing that the lower court acted without 7urisdiction (Pro+eta *. -uitierre@ 1a*id, -.R. #o. V ENUE AND J URISDICTION IN &95//34, April 16, 1051).

S PECIAL P ROCEEDINGS

Special Proceeding Se$$le#en$ o& $%e E!$a$e

J"ri!dic$ion :)1 if the gross value of the estate does not e,ceed +esidence of the decedent or if the 2h23%%,%%%, or does not e,ceed decedent is a non3resident, place 2h24%%,%%% in :etro :anila where he had an estate +)1 if the gross value of the estate e,ceeds the above amounts a. Person dies intestate lea*ing no heir 6 +esidence of the decedent or if non3resident, in the place where he had an estate. b. Re*ersion 6 4here the land lies in whole or in part c. %nclaimed Balances Act 6 4here the dormant deposits are located 4here the minor or incompetent resides 4here the will was allowed or where the property or portion thereof affected by the trust is situated 4here the adopter resides 4here the adoptee resides if filed with the Aamily 1ourt 4here the adoptee resides +)1 +)1 +)1 Aamily 1ourt >in case of :inors? +)1 >+egular courtsQin case of -ncompetents? +)1@:)1

+en"e

E!c%ea$

Appoin$#en$ o& "ardian!

Appoin$#en$ o& Tr"!$ee!

Do#e!$ic Adop$ion In$er(Co"n$r. Adop$ion Re!ci!!ion o& Adop$ion )a1ea! Corp"!

Aamily 1ourt Aamily 1ourt or the -nter31ountry Adoption ;oard Aamily 1ourt *1, 1A, +)1, :)1 in the province or city in case there is no +)1 4here the detainee is detained >if 7udge; the petition is filed with the +)1? *andiganbayan only in aid of its appellate 7urisdiction.

77

San Beda College of Law 2010 Centralized Bar Operations Special Proceeding C"!$od. o& Minor! +en"e 2rovince or city where petitioner resides or minor may be found. 4here the petitioner or respondent resides, or that which has 7urisdiction over the place where the data or information is gathered collected or stored, at the option of petitioner 4here the threat act or omission was committed or any of its elements occurred 4here the petitioner resides or where the minor may be found. 4here petitioner resides J"ri!dic$ion Aamily 1ourt +)1; *andiganbayan, 1A or *1 when the action concerns public data files or government offices +)1; *andiganbayan, 1A, or *1 or any 7ustice thereof Aamily 1ourt, 1A and *1. +)1

)a1ea! Da$a

A#paro Proceeding! )a1ea! Corp"! in rela$ion $o #inor C%ange o& Na#e Appoin$#en$ o& Repre!en$a$i/e o& A1!en$ee<Declara$ion o& A1!ence Cancella$ion<Correc$ion o& En$rie! in $%e Ci/il Regi!$rie!

4here the absentee resided +)1 before his disappearance 4here the corresponding 1ivil +)1 +egistry is located 4here petitioner or respondent has been residing for at least ! months prior to the date of filing, in Aamily 1ourt case of non resident respondent, where he may be found at the election of the petitioner.

Pe$i$ion &or Declara$ion o& N"lli$.9 Ann"l#en$9 Legal Separa$ion

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San Beda College of Law 2010 Centralized Bar Operations

C OMP ARAT IVE C HART ' H ABEAS C ORPUS W RIT H ABEAS D ATA
;ri$ o& Amparo -nvolves the right to life, liberty and -nvolves the right to liberty of and security of the aggrieved party and rightful custody by the aggrieved party covers e,tralegal killings and enforced disappearances )here is an actual violation of )here is an actual or threatened aggrieved party<s right. violation of aggrieved party<s right. ;ri$ o& Habeas Corpus

OF

A MPARO

AND

;ri$ o& Habeas Data -nvolves the right to pri1acy in life, liberty or security of the aggrieved party and covers e,tralegal killings and enforced disappearances )here is an actual or threatened violation of aggrieved party<s right. +espondent is a public official or employee or a private individual or entity engaged in the gathering, +espondent is a public official or collecting or storing of data or +espondent( may or may not be an employee or a private individual or information regarding the person, officer. entity. family name and correspondence of the aggrieved party. ;%o #a. &ile $%e pe$i$ion= ;%o #a. &ile $%e pe$i$ion= ;%o #a. &ile $%e pe$i$ion= Ailed by the party for whose relief it is Ailed by the aggrieved party or by any intended or by some person on his 'ualified person or entity in the behalf. following order( a? any member of the immediate family of the aggrieved party, i.e. spouse, children and parents; b? any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity; c? any concerned citi&en, organi&ation, association or institution (right to +ile is successi*e). )he filing of the aggrieved party himself suspends the right to file petition by other persons. Hpon filing of the petition by an authori&ed person suspends the right Ailed by the aggrieved party; but in cases of extrale!al 7illin!s and enforced disappearances, may be filed by( a? any member of the immediate family of the aggrieved party, i.e. spouse, children and parents; b? any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity.

79

San Beda College of Law 2010 Centralized Bar Operations ;ri$ o& Habeas Corpus ;ri$ o& Amparo ;ri$ o& Habeas Data

to file by others down the order.

Filed 1e&ore= Filed 1e&ore= Filed 1e&ore= 1. RTC or an. 2"dge thereof, 1. RTC of the place where the 1. RTC where the petitioner or enforceable within its territorial threat act or omission was respondent resides, or that which 7urisdiction; committed or any of its elements has 7urisdiction over the place 2. CA or an. #e#1er thereof occurred; where the data or information is in instances authori&ed by law; and 2. Sandigan1a.an or an. gathered collected or stored, at 3. SC or an. #e#1er thereof. 2"!$ice thereof; the option of petitioner 3. CA or an. 2"!$ice thereof; 2. SC, CA or Sandigan1a.an Con$en$! o& $%e !igned /eri&ied and when the action concerns public pe$i$ion!= 4. SC or an. 2"!$ice thereof. data files or government offices. 1. )he fact that the person in whose Con$en$! o& $%e !igned and /eri&ied behalf the petition is filed is pe$i$ion= imprisoned or restrained of his liberty; 1. 2etitioner<s circumstances. 2.)he detaining officer or private 2. individual, if unknown or uncertain, +espondent<s circumstances such officer or person maybe 3. described by an assumed )he right violated or threatened to be appellation; violated details of the violation or threat. 3.)he place where the person 4. deprived of his liberty is imprisoned -nvestigations conducted or detained; and . Actions and recourses taken by the 4.A copy of the commitment or cause petitioner in ascertaining the of detention of such person, if it can whereabouts of the aggrieved party. be procured without impairing the !. efficiency of the remedy, or the fact +elief prayed for which may include a that the imprisonment or detention general prayer for other 7ust and is without any legal authority. e'uitable reliefs. Con$en$! o& $%e !igned and /eri&ied pe$i$ion= 1. 2e titioner<s circumstances. 2. +e spondent<s circumstances. 3. 8o cation of the file or database and the person or entity having custody, possession or control. 4. Ac tions and recourses taken by the petitioner to secure the data or information. . Hp date, rectification, suppression or destruction of the file or database or the en7oinment of the threat. !. 5 eneral prayer to other 7ust and e'uitable reliefs.

-f granted by SC or CA or any member of such courts, it is )he writ shall be enforceable )he writ shall be enforceable enforceable anywhere in the anywhere in the 2hilippines anywhere in the 2hilippines regardless 2hilippines; if granted by the RTC or a regardless of who issued the same. of who issued the same. 7udge thereof, it is enforceable only within his 7udicial district.

80

San Beda College of Law 2010 Centralized Bar Operations ;ri$ o& Habeas Corpus ;ri$ o& Amparo ;ri$ o& Habeas Data -f issued by the RTC or an. 2"dge thereof, it shall be returnable before such court or 7udge. -f issued by the CA or the Sandigan1a.an or an. o& i$! 2"!$ice!, it may be returnable before such court or any 7ustice thereof, or to any +)1 of the place where the petitioner or respondent resides or that which has 7urisdiction over the place where the data or information is gathered, collected or stored. -f issued by the SC or an. o& i$! 2"!$ice!, it may be returnable before such 1ourt or any 7ustice thereof, or before the 1A or the *andiganbayan or any of its 7ustices, or to any +)1 of the place where the petitioner or respondent resides or that which has 7urisdiction over the place where the data or information is gathered, collected or stored.

-f issued by the RTC or an. 2"dge thereof, it is returnable before such court or 7udge. -f issued by the Sandigan1a.an or the CA or an. o& $%eir 2"!$ice!, it may be returnable before such court or any 7ustice thereof, or to any +)1 of the place where the threat, act or omission was committed or any of its elements occurred. -f granted by the SC or CA or an. #e#1er of such courts, it may be made returnable before the court or any member thereof or before an +)1 or any 7udge thereof. -f granted by the RTC or a 2"dge thereof, it is returnable before himself. -f issued by the SC or an. o& i$! 2"!$ice!, it may be returnable before such 1ourt or any 7ustice thereof, or the *andiganbayan or 1A or any of their 7ustices, or to any +)1 of the place where the threat, act or omission was committed or any of its elements occurred.

)he writ shall be immediately issued )he writ shall be immediately issued upon filing of a valid petition upon filing of a valid petition substantial in form and content. substantial in form and content. )he clerk of court shall issue the writ )he clerk of court shall issue the writ under the seal of the court; shall be under the seal of the court. E,cept in served by the clerk within 3 days from emergency cases which may be issuance. -n case of emergency, the issued by the 7udge or 7ustice. writ maybe issued by a 7ustice or 7udge. )he writ shall set the date and time for summary hearing within 3 da.! from )he writ shall set the date and time for the issuance of the writ. summary hearing within 16 da.! from issuance. 2etitioner is e,empted from payment of docket and other lawful fees. 9nly an indi!ent petitioner is not re'uired to pay docket and other lawful fees.

*ummary hearing shall be conducted *ummary hearing shall be conducted Bate and time of hearing is specified not later than 7 days from the date of not later than -. wor7 days from the in the writ. the issuance of the writ. date of the issuance of the writ. *erved to the person to whom it is directed; and if not found or has not the prisoner in his custody, to the other person having or e,ercising A copy is served on the respondent A copy is served on the respondent such custody. and the sheriff retains a copy on which and the sheriff retains a copy on which to make a return of service. to make a return of service. *erved upon the respondent personally, but if it cannot be served personally, the rules on substituted service shall apply. *erved upon the respondent personally, but if it cannot be served personally, the rules on substituted service shall apply.

81

San Beda College of Law 2010 Centralized Bar Operations ;ri$ o& Habeas Corpus -f the person to whom the writ is directed neglects or refuses to obey or make return of the same, or makes a false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within ! hours after the demand therefore, a true copy of the warrant or order of commitment, he shall forfeit to the party aggrieved the sum of 2hp 1,%%% and may be punished for contempt. ;ri$ o& Amparo ;ri$ o& Habeas Data

-f the respondent refuses to make a return or makes a false return, he may be punished with imprisonment or fine for committing contempt without pre7udice to other disciplinary actions.

-f the respondent makes a false return or refuses to make a return, he may be punished with imprisonment or fine for committing contempt without pre7udice to other disciplinary actions..

)he person who makes the return is )he person who files the return is the the officer by whom the prisoner is respondent. )he return must be filed imprisoned or the person in whose within C da.! from the service of the custody the prisoner is found. writ. Con$en$! o& $%e Re$"rn= Con$en$! o& $%e Re$"rn= 1. 4hether or not he has custody over 4. 8awful defenses available to the aggrieved party; the respondent. 2. )he authority and the true and . )he actions and steps taken by whole cause of detention; the petitioner in determining the 3. if the party detained cannot be whereabouts of the aggrieved produced, he must state the sickness party and the identity of the or infirmity; violator. 4. if he has transferred the custody, he !. All information relevant to the shall state whom the person was case. transferred, time, cause and authority ". Actions taken by the public of such transfer. official( a. -n verifying the identity of the aggrieved party. b. +ecovery and preservation of the evidence for the prosecution. c. Betermine the circumstances surrounding the death of disappearance. d. -dentify and apprehend the persons involved. e. ;ring the suspected offender to the court. A general denial of the allegations in the petition shall not be allowed.

)he person who files the return is the respondent. )he return must be filed within C da.! from the service of the writ.

Con$en$! o& $%e Re$"rn= 1. 8awful defenses available. 2. -f the respondent has possession or control of the data or information( a. Ge must disclose the data or information, its nature, and the purpose of his collection. b. )he actions and steps taken in order to secure the confidentiality of the data or information. c. )he accuracy of the data or information in his possession or control. 3. All relevant allegations. A general denial of the allegations in the petition shall not be allowed.

E&&ec$! o& &ail"re $o &ile a re$"rn= E&&ec$! o& &ail"re $o &ile a re$"rn= )he 1ourt, 7ustice or 7udge shall proceed to hear the petition e, parte, -f the respondent fails to file a return, granting the petitioner such relief as the court, 7ustice or 7udge shall the petition may warrant unless the proceed to hear the petition ex parte. court in its discretion re'uires petitioner to submit evidence.

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San Beda College of Law 2010 Centralized Bar Operations ;ri$ o& Habeas Corpus ;ri$ o& Amparo )here are prohibited pleadin!s and motions' *ec. 12 1. Hnless for good cause shown, the hearing is ad7ourned, in which event the court shall make an order for the safe keeping of the person imprisoned or restrained as the nature of the case re'uires; 2. )he court or 7udge must be satisfied that the person<s illness is so grave that he cannot be produced without any danger. ;ri$ o& Habeas Data )here are prohibited pleadin!s and motions.

*ec. 14. )he court, 7ustice or 7udge may grant interim reliefs, to wit( temporary protection order, inspection 09) applicable. order, production order and witness protection order.

)here is no presumption that official duty has been regularly performed. #ud!ment shall be rendered within #ud!ment shall be rendered within 1% days from the time the petition is 1% days from the time the petition is submitted for decision. submitted for decision. )he writ and reliefs prayed for must be granted if the allegations are proven by substantial evidence. 9therwise, it must be denied. 2eriod of appeal is within (% hours from notice of the 7udgment or final order appealed from. )he appeal shall be filed to the *upreme 1ourt under +ule 4 . (Dan $hin 3ui *. Rodrigue@, -.R. #o. 13/./1, Septem2er '1, '(((). )he writ and reliefs prayed for must be granted if the allegations are proven by substantial evidence. 9therwise, it must be denied. Dudgment shall be enforced within working days. 2eriod of appeal shall be * wor7in! days from the date of notice of the 7udgment or final order. Filed "ith S$ thru R%&E 5.. -i*en the same priorit7 as that o+ 3a2eas $orpus.

2eriod of appeal shall be * wor7in! days from the date of notice of the adverse 7udgment. Filed "ith S$ thru R%&E 5.. -i*en the same priorit7 as that o+ 3a2eas $orpus.

:ay be consolidated with a criminal :ay be consolidated with a criminal action filed subse'uent to the petition. action filed subse'uent to the petition. Fuantum of proof is clear and Fuantum of proof is substantial convincing evidence. evidence. -f the petition cannot proceed for a valid cause, it shall not be dismissed by the court, but it must be archived. After 2 years from notice of the archiving of the petition, it shall be dismissed with pre7udice upon failure to prosecute. *ubstantive rights cannot be increased, diminished or modified. )he +ules of 1ourt applies suppletorily.

*ubstantive rights cannot be increased, diminished or modified. )he +ules of 1ourt applies suppletorily.

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San Beda College of Law 2010 Centralized Bar Operations

C OM PARATIVE C HART ' R ULE #"3 R ULE #"8

R"le 164 R"le 167 1ancellation or 1orrection of Entries in the 1ivil +egistry (Su2stantial and ad*ersar7, i+ change a++ects the ci*il status, citi@enship or nationalit7> Summar7, i+ it in*ol*es mere clerical errors.) 1hange or corrections in the civil registry entries >substantial corrections?( ;irths, marriages, deaths, legal separation, 7udgments of annulments of marriage, 7udgments declaring void a marriage, legitimations, adoptions, acknowledgment of natural children, naturali&ations, election, loss or recovery of citi&enship, civil interdiction, 7udicial determination of filiation. ;%o #a. &ile

AND

R&A& N O & !"48

R.A. No. 56:7

*ubstantial change of name

1lerical Error Act

1hange of full name

1hange of first name and nickname and civil registry entries >only typographical or clerical errors?

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San Beda College of Law 2010 Centralized Bar Operations Any person interested in any act, event, order or decree concerning A person desiring to change his the civil status of persons which name files a petition. has been recorded in the civil register. +en"e Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and@or change of first name or nick name files a verified petition in a form of an affidavit. 1. 8ocal civil registry office of the city or municipality where the record being sought to be corrected or changed is kept; 2. 8ocal civil registrar of the place where the interested party is presently residing or domiciled >transient petitioner?; 3. 2hilippine consulates 1. Aacts necessary to establish the merits of the petition; 2. 2articular erroneous entry or entries, which are sought to be corrected and@or the change sought to be made. a? )hat the petitioner has been a bona fide resident of the province where the petition is filed for at least 3 years prior to the date of filing; b? )he cause for which the change of the petitioner<s name is sought; c? )he name asked for; d? All names by which petitioner is known. )he petition shall be supported with the following documents( a? 1ertified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed; b? At least 2 public or private documents showing the correct entry or entries upon which the correction or change shall be based; and c? 9ther documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition. ro"nd! a? 0ame is ridiculous, tainted with dishonor or e,tremely difficult to write or pronounce; b? 1onse'uence of change of status; c? 0ecessity to avoid confusion; d? Gaving continuously used and Hpon good and valid grounds, the been known since childhood entries in the civil registry may be by a Ailipino name, unaware of cancelled and corrected. his@her alien parentage; e? A sincere desire to adopt a Ailipino name to erase signs of former alienage all in good faith and without pre7udicing anybody.

+)1 of the province in which the petitioner resides for 3 years prior +)1 of the city or province where to the filing, or, in the 1ity of the corresponding civil registry is :anila, to the Duvenile and located Bomestic +elations 1ourt

Con$en$! o& Pe$i$ion

a? Airst name or nickname is ridiculous, tainted with dishonor or e,tremely difficult to write and pronounce; b? )he new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or c? )o avoid confusion.

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San Beda College of Law 2010 Centralized Bar Operations Find o& Proceeding *ummary proceeding )his can be converted to an Administrative adversarial proceeding if there are substantial changes and affect the status of an individual ;%a$ $o File Cerified petition for the *igned and verified petition cancellation or correction of any Cerified petition in the form of Affidavit entry No$ice9 P"1lica$ion and Po!$ing At least once a 0ee> &or $%ree At least once a 0ee> &or $%ree At least once a 0ee> &or , con!ec"$i/e con!ec"$i/e 0ee>! in a con!ec"$i/e 0ee>! in a 0ee>! >publish the whole affidavit? newspaper of general circulation newspaper of general circulation >notice of hearing? >notice of hearing? Buty of the civil registrar or 1onsul to post the petition in a conspicuous place for 1% 0o posting 0o posting consecutive days Dudicial *ervice of 7udgment shall be upon the civil register concerned. *ervice of 7udgment shall be )ransmittal of decision to civil registrar upon the civil register concerned. concerned. Par$icipa$ion 1. $%e o/ern#en$

*olicitor 5eneral or the proper provincial or city fiscal shall appear on behalf of the +epublic. 1ivil +egistrar is an indispensable 1ivil +egistrar or 1onsul party. 1ivil +egistrar is not a party to the proceeding. Appeal 1ourt of Appeals 1ourt of Appeals 1ivil +egistrar 5eneral >head of 01*9?

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