Spec Proc

San Beda College of Law
100
MEMORY AID
IN
REMEDIAL LAW
SPECIAL PROCEEDINGS
REMEDIAL LAW COMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

101
MEMORY AID
SPECIAL PROCEEDINGS - A remedy by
which a party seeks to establish a status, a
right or a particular fact. (Rule 1, Section
3)
JURISDICTION
GENERAL RULE: Regional Trial Court
EXCEPTION: MTC has jurisdiction in the
following cases:
1. Probate proceedings whether testate
or intestate where the gross value of
the estate does NOT exceed P300,000
or P400,000
in Metro Manila,
EXCLUSIVE of interest, damages of
whatever kind, attorneys fees,
litigation expenses and costs.
2. DELEGATED JURISDICTION
in
Cadastral
and
Land
Registration Cases covering lots where
there is no controversy or opposition
or contested lots where the value of
which does not exceed P 100T.
appeal is taken to the CA, not to
the RTC since MTC is equal to RTC in
this instance.
3. SPECIAL JURISDICTION
petitions for writ of Habeas
Corpus in case of absence of RTC
judges.
SPECIAL
PROCEEDING
to protect or
enforce a right or
prevent or redress a
wrong
involves the
establishment of the
right, status or fact
involves two or
more parties
may involve only

one party
governed by
ordinary rules
governed by special
rules supplemented
supplemented by
special rules
by ordinary rules
REMEDIAL LAW
heard by courts of
general jurisdiction
heard by courts of
limited jurisdiction
Initiated by a
pleading and parties
respond through an
answer
Initiated by means of
a petition and parties
respond by means of
an opposition
DIFFERENT MODES OF SETTLEMENT OF

ESTATE OF DECEASED PERSON
1. Extrajudicial Settlement of Estate
(Section 1, Rule 74)
2. Partition (Rule 69)
3. Summary Settlement of Estate of
Small Value (Section 3, Rule 74)
4. Probate of Will (Rule 75 to 79)
5. Petition
for
letters
of
Administration
in
cases
of
Intestacy (Rule 79)
PROCEDURE
PROCEEDINGS
IN
SETTLEMENT
Probate of the Will if

any (Rule 75 76)
Issuance of Letters
Testamentary/Administration
(A special administrator may be
appointed) (Rule 77-80)
SC and CA have original jurisdiction over

Habeas Corpus cases, concurrent with the
RTC.
ORDINARY
ACTION
IN
Filing of Claims
(Rule 86)
Payment of Claims
Sale/Mortgage/Encumbrance
of Properties of the Estate
Distribution of Residue, if any

(But this can be made even before
payment if a bond is filed by the heirs)
RULE 73
VENUE AND PROCESS
VENUE

Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special

102
MEMORY AID
INHABITANT
OF
PHILIPPINES
(whether citizen or alien) Court
of province/city where he resides
at the time of death.
INHABITANT OF FOREIGN COUNTRY
RTC of any province wherein he
had his estate.
Residence means his personal, actual or

physical habitation, his actual residence or
place of abode. (Fule vs. CA, L-40502,
Nov. 29, 1976)
Where estate
settled. (Sec.1)
of
deceased
persons
2 KINDS OF SETTLEMENT
A. EXTRAJUDICIAL SETTLEMENT (Rule 74, Section 1)
B. JUDICIAL SETTLEMENT - Testate or
Intestate Proceedings instituted in the
country where decedent has his
residence
EXTENT OF JURISDICTION
Probate courts are courts of LIMITED
jurisdiction. It may only determine and
rule upon issues relating to the settlement
of the estate, namely:
1. administration of the estate;
2. liquidation of the estate; and
3. distribution of the estate.
GENERAL RULE: Probate court cannot
determine issue of ownership.
EXCEPTIONS:
1. Provisionally, ownership may be
determined for the purpose of
including property in inventory,
without prejudice to its final
determination in a separate action; or
2. When 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 prejudiced.
(Bernardo vs. CA, L-18148, Feb. 28,
1963)
IN
REMEDIAL LAW
EXAMPLES OF OTHER QUESTIONS WHICH

THE PROBATE COURT CAN DETERMINE
1. Who are the heirs of the decedent;
2. The recognition of a natural child;
3. The validity of disinheritance
effected by the testator;
4. Status of a woman who claims to
be the lawful wife of the
decedent;
5. The validity of a waiver of
hereditary rights;
6. The status of each heir;
7. Whether property in inventory is
conjugal or exclusive property of
deceased spouse;
8. All other matters incidental or
collateral to the settlement and
distribution of the estate.
PRINCIPLE OF EXCLUSIONARY RULE
The court first taking cognizance of the
settlement of the estate of the decedent,
shall exercise jurisdiction to the exclusion
of all other courts.
The probate court acquires jurisdiction
from the moment the petition for the
settlement is filed with said court. It
cannot be divested of such jurisdiction by
the subsequent acts of the parties as by
entering into extrajudicial partition of the
estate (Sandoval vs. Santiago, 88 PHIL
784); or filing another petition for
settlement in a proper court of concurrent
venue (De Boria vs. Tan, 77 Phil 872).
EXCEPTION:
Estoppel by LACHES
Jurisdiction under Rule 73 Sec. 1 does
NOT relate to jurisdiction per se but to
venue. Hence, institution in the court
where the decedent is neither an
inhabitant or have his estate may be
waived. (Uriarte vs. CFI, L-21938-39, May
29, 1970)
Improper venue must be seasonably
raised. (Eusebio v. Eusebio, 100 PHIL 593)


103
MEMORY AID
REMEDY IF THE VENUE IS IMPROPERLY
LAID
ORDINARY APPEAL not certiorari or
mandamus UNLESS want of jurisdiction
appears on the record of the case.
RTC may issue writs and processes.
(Sec.3, Rule 73)
GENERAL RULE: Probate court cannot
issue writs of execution.
Reason: its orders usually refer to the
adjudication of claims against the estate
which the executor/administrator may
satisfy without the need of executory
process.
EXCEPTIONS: EXCLUSIVE (expressio unius
est exclusio alterius)
1. To satisfy the contributive share of
the devisees, legates and heirs
when the latter had entered prior
possession over the estate. (Sec.
6, Rule 88)
2. To enforce payment of the
expenses of partition. (Sec. 3, Rule
90)
Where
the
estate
settled
upon
dissolution of marriage (Sec.2)
Upon the death of either the husband or
the wife, the partnership affairs must be
liquidated in the testate or intestate
proceedings of the deceased husband or
wife. If both have died, liquidation may be
made in the testate or intestate
proceedings of either.
RULE 74
SUMMARY SETTLEMENT OF ESTATE
GENERAL RULE: If a person dies, his
estate is submitted to a judicial
settlement proceeding.
EXCEPTION: The heirs may resort to:
1. Extrajudicial settlement of estate; or
2. Summary settlement of estate must
be conducted in accordance with
regular procedure NOT under rules of
summary procedure. (Regalado)
IN
REMEDIAL LAW
In these exceptions an administrator or

executor need not be appointed.
EXTRAJUDICIAL
SETTLEMENT
BY
AGREEMENT BETWEEN HEIRS (Sec.1)
Requisites:
A. Substantive
1. The decedent left a) no will
b) no debts
2. The heirs are all of age or the
minors are represented by their
judicial or legal representatives
duly authorized for the purpose
B. Procedural
1. Division of estate must be in a
PUBLIC
INSTRUMENT
or
by
AFFIDAVIT of ADJUDICATION in the
case of a sole heir.
2. Filed with proper Registry of Deeds
3. Publication of notice of the fact of
extrajudicial settlement once a
week for 3 CONSECUTIVE WKS.
4. Bond filed equivalent to the value
of PERSONAL property.
The bond is required only when

personalty is involved or the real estate is
subject 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.
The bond is the value of the personal
property certified by the parties under
oath and CONDITIONED upon payment of
just claims filed under Sec. 4, Rule 74.
BOND
1. equivalent to the value of personal
property
2. certified by parties under oath by
an affidavit
3. conditioned upon the payment of
just claims filed under Sec. 4.
If they cannot agree to the manner of
partition among themselves, they may
resort to Ordinary Action of Partition. If


104
MEMORY AID
despite the institution of such action they
subsequently arrived at an agreement,
they may enter into the corresponding
stipulation and register the same with the
Register of Deeds. (Regalado)
Is a Public Instrument necessary for the
validity of an extrajudicial settlement?
NO. Private instrument/document or Oral
agreement of partition is valid among the
heirs who participated in the extrajudicial
settlement. The requirement under Sec. 1,
Rule 74 that it must be in public
instrument is NOT constitutive of the
validity but is merely evidentiary in
nature. (Hernandez vs Andal)
However, Reformation may be compelled.
(Regalado)
EXTRAJUDICIAL
SETTLEMENT
JUDICIAL
SETLLEMENT
No court intervention
requires summary
judicial adjudication
gross estate must not
exceed P10T
allowed in both
testate and intestate
available even if
there are debts; it is
the court which will
make provision for
its payment
May be instituted by
ANY INTERESTED
PARTY even a
creditor of the
estate without the
consent of all heirs
bond to be
determined by the
court
value of the estate

immaterial
allowed only in
intestate succession
there must be no
outstanding debts of
the estate at the
time of settlement
resorted at the
instance and by
agreement of ALL
heirs
amount of bond is
equal to the value of
personal property
While the Rules 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 of the
extrajudicial settlement is entered into.
(Guico vs. Bautista, 110 Phil 584)
IN
REMEDIAL LAW
DISPUTABLE
PRESUMPTION
THAT
DECEDENT LEFT NO DEBTS
If no creditor files a petition for letters of
administration within 2 years after the
death of the decedent.
SUMMARY SETTLEMENT OF ESTATE OF
SMALL VALUE (Sec.2)
GROSS VALUE of the estate must NOT
EXCEED P10, 000.
This is jurisdictional. (Del Rosario vs.
Conanan, L-37903, March 30, 1977)
IMPORTANT REQUIREMENTS
1. Application
must
contain
allegation of gross
value of
estate.
2. Date for hearing
a) shall be set by court not less
than 1 MONTH nor more than
3MONTHS from date of last
publication of notice;
b) published, ONCE A WEEK FOR 3
CONSECUTIVE
WKS
in
a
newspaper
of
general
circulation.
3. Notice shall be served upon such
interested persons as the court
may direct.
4. Bond - amount fixed by the court
(not value of personal prop)
conditioned upon payment of just
claims under Sec.4.
LIABILITY OF DISTRIBUTEES AND ESTATE
(Sec.4)
REQUISITES OF TWO-YEAR PERIOD LIEN
1. persons have taken part or have
notice of extrajudicial partition
2. compliance with the provisions of
Sec.1, Rule 74 (Sampilo vs. CA)
BASIS TO COMPEL SETTLEMENT OF THE
ESTATE
1. undue
deprivation
of
lawful
participation in the estate.


105
MEMORY AID
2. existence of debts against the estate
or undue deprivation of lawful
participation payable in money.
REMEDIES
1. WITHIN 2 YRS. - claim against the
bond or the real estate.
2. Action to Annul a deed of
extrajudicial
settlement on the
ground of FRAUD within 4 YEARS
from the discovery of fraud.
3. Reconveyance of real property.
Where the estate has been summarily
settled, the unpaid creditor may, within 2
years, file a motion in the court wherein
such summary settlement was had, for the
payment of his credit.
EXCEPTION:
If on the date of the
expiration of the two-year period, the
creditor or heir is a) A minor or incapacitated, or
b) In prison or
c) Outside the Philippines,
he may present his claim within one year
after such disability is removed. (Sec. 5
Rule 75)
The 2-year lien upon the real property
distributed by extrajudicial 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 (LRC
CIRCULAR 143)
Such 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.
(Rebong vs. Ibanez, 79 Phil 324)
RULE 75
PRODUCTION OF WILL/ ALLOWANCE OF
WILL NECESSARY
IN
REMEDIAL LAW
Section
1.
Allowance
conclusive as to execution.
necessary,
NATURE OF PROBATE PROCEEDINGS

1. IN REM -binding on the whole
world.
2. MANDATORY - no will shall pass
either real or personal property
unless it is proved and allowed in
the proper court. HOWEVER, it
has been held in one case that a
will may be sustained on the basis
of Article 1080 of the Civil Code
which reads as follows:
If the testator should make a
partition of his properties by an
act inter vivos, or by will, such
partition shall stand in so far as it
does not prejudice the legitime of
the forced heir. (Mang-Oy vs. CA,
144 SCRA 33).
3. IMPRESCRIPTIBLE because of the
public policy to obey the will of
the testator.
4. The DOCTRINE OF ESTOPPEL does
not apply.
Reason: presentation
and
probate of will is required by
public policy and involves public
interest. (Fernandez vs. Dimagiba)
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
Probate or Allowance of Wills - 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 recognized, registered and its
provisions carried insofar as they are in
accordance with law.
Who may petition for allowance of will?
(Sec.1)
1. any creditor - as preparatory step
for filing of his claim therein
(Regalado, p.26)
2. devisee or legatee named in the
will


106
MEMORY AID
3. person interested in the will (e.i.,
heirs)
4. testator himself during his
lifetime the possession of the will
is not necessary
Who may be a party in probate?
Generally, any person having a direct and
material interest in the will or estate.
CONTENTS OF THE PETITION (Sec.2)
1. the jurisdictional facts 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 non-resident;
2. the names, ages, and residences of
the heirs, legatees, devisees of the
testator or decedent;
3. the probable value and character
of the property of the estate;
4. the name of the person for whom
the letters are prayed;
5. the name of the person having
custody of the will if has not been
delivered to the court.
But 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 annexed.
EFFECT OF THE PROBATE OF A WILL
It is conclusive as to the EXECUTION and
the VALIDITY of the will (even against the
state). Thus, a criminal case against the
forger may not lie after the will has been
probated.
ISSUE IN THE PROBATE OF A WILL
GENERAL RULE:
Only determination of the extrinsic
validity not the intrinsic validity or
testamentary dispositions.
EXCEPTION:
Where the entire or all
testamentary dispositions are void and
where the defect is apparent on its face.
(Acain vs. IAC GR No. 72706, Oct. 27,
1987; Nepumuceno vs. CA, 139 SCRA 206)
IN
EXTRINSIC VALIDITY
execution of the will.
REMEDIAL LAW
-
means
due
MEANING AND EXTENT DUE EXECUTION

Due execution means that:
1. the testator is of sound and
disposing mind when he executed
the will;
2. the will was NOT executed under
duress,
fraud
or
other
circumstances
that
vitiates
consent;
3. the required formalities have been
strictly complied with; and
4. the will is genuine and not a
forgery.
COURT APPOINTS TIME FOR PROVING
WILL. NOTICE THEREOF TO BE PUBLISHED
(Sec.3)
When does court acquire jurisdiction
over interested persons and res?
Upon PUBLICATION for 3 WKS successively
of the order setting the case for hearing
AND sending NOTICES to all persons
interested.
NOTICES MUST BE GIVEN TO:
1. designated
or
known
heirs,
legatees and devisees; and
2. executor and co-executor if not
the petitioner.
MODES OF NOTIFYING
By mail: 20 days before hearing
Personal notice: 10 days before hearing
3 weeks successively is not strictly 21
days.
ANTE MORTEM
If petition for probate is on testators own
initiative during his lifetime 1. no publication is necessary; and
2. notice shall be made only to the
compulsory heirs.
PROOF OF HEARING (Sec.5)
At the hearing, compliance of Publication
and Notice must first be shown before


107
MEMORY AID
introduction of testimony in support of the
will.
EVIDENCE in support of will:
1. UNCONTESTED WILL (Sec.5)
a) Notarial Wills - testimony of at
least 1 of the subscribing
witnesses is allowed.
- if all subscribing witnesses
reside outside the province
deposition is allowed.
- if subscribing witnesses
reside is dead, insane, or none
reside in the Philippines Court
may admit testimony of the
witnesses to prove the sanity of
the testator, and the due
execution of the will, and as
evidence of the execution of the
will, it may admit proof of the
handwriting of the testator and of
the subscribing witnesses or of any
of them.
b) Holographic Wills - the testimony
of 1 witness who knows the
handwriting and signature of the
testator. In the absence thereof,
testimony of an expert witness.
2. CONTESTED (Sec.11)
a) Notarial Wills - ALL subscribing
witnesses AND notary public.
HOWEVER, if any or all the
witnesses (i) testify against the
execution of the will, (ii) do not
remember attesting thereto, or
(iii) of doubtful credibility, the will
may be allowed if the court is
satisfied from the testimony of
other witnesses and from all the
evidence presented that the will
was executed and attested in the
manner required by law.
b) Holographic Wills - 3 witnesses
who knows the handwriting of
testator. In the absence thereof,
testimony of an expert witness
may be resorted to.
IN
REMEDIAL LAW
HOWEVER, in Codoy vs. Calugay,

GR NO. 123486, Aug. 12, 1999, the
SC ruled that if the holographic
will is contested, 3 witnesses who
know
the
handwriting
and
signature of the testator are now
required/mandatory to prove its
authenticity and for its allowance.
GENERAL RULE: Holographic will if
destroyed CANNOT be probated.
EXCEPTION: If there exists a Photostat or
Xerox copy thereof. (Gan vs. Yap, 104 Phil
509)
Proof of lost or destroyed will (Sec.6)
Facts which should be proved in order that
a lost or destroyed will may be allowed:
1. due execution and validity of the
will;
2. will was in existence when
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. the provisions of the will are
clearly established by at least two
credible witnesses.
RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE
OF PHILIPPINES AND ADMINISTRATION OF
ESTATE THEREUNDER
A will allowed or probated in a foreign
country, must be RE-PROBATED in the
Philippines. If the decedent owns
properties in different countries, separate
administration proceedings must be had in
said countries.
TWO TYPES OF ESTATE PROCEEDINGS:
1. Domicilliary administration - the
proceeding instituted in last
residence of the decedent.


108
MEMORY AID
2. Ancillary administration - the
administration proceedings where
he left his estate.
REQUISITES
OF
ANCILLARY
ADMINISTRATION (Sec.2)
1. there must be a will (inferred from
the wordings of Rule 77);
2. filing of:
a) copy of the will executed in
foreign country;
b) order or decree of foreign
court allowing such will; and
c) authentication of requisites a
and b above;
3. notice of time and place of
hearing;
4. hearing; and
5. certificate of allowance.
Can a will executed and proved in a
foreign country be allowed in the
Philippines under Rule 77?
YES. Provided that the following must be
proved:
1. foreign
court
must
have
jurisdiction over the proceeding;
2. domicile of testator/decedent in
the foreign country and not in the
Philippines;
3. that the will has been admitted to
probate in such country;
4. it was made with the formalities
prescribed by the law of the place
in which the decedent resides, or
according to the formalities
observed in his country, or in
conformity with the formalities
prescribed by our Civil Code; and
5. due execution of the will in
accordance with the foreign laws.
(Regalado)
EFFECTS
1. the will shall have the same effect
as if originally proved and allowed
in court of the Philippines.
2. letters
testamentary
or
administration with a will annexed
IN
REMEDIAL LAW
shall extend to all estates of the

Philippines.
3. Residue of estate after payment of
debts, etc. shall be disposed of as
provided by law in cases of estates
in Philippines belonging to persons
who are inhabitants of another
state or country.
RULE 78
LETTERS TESTAMENTARY AND OF
ADMINISTRATION WHEN AND TO WHOM
ISSUED
PERSONS WHO CAN ADMINISTER THE
ESTATE
1. Executor;
2. Administrator, regular or special
(Rule 80); and
3. Administrator with a will annexed
(Rule 79, Section 1).
Executor - The one named by the testator
in his will for the administration of his
property after his death.
Administrator - One appointed by the
Court in accordance with the Rules or
governing statutes to administer and settle
the intestate estate or such testate
estate, where the testator did not name
any executor or that the executor so
named refuses to accept the trust, or fails
to file a bond, or is otherwise
incompetent.
Administrator with a will annexed - one
appointed by the court in cases when,
although there is a will, the will does not
appoint any executor, or if appointed, said
person is either incapacitated or unwilling
to serve as such.
WHO
MAY SERVE AS
EXECUTOR/
ADMINISTRATOR?
Any COMPETENT person may serve as
executor or administrator.


109
MEMORY AID
WHO ARE INCOMPETENT TO SERVE AS
EXECUTOR/ADMINISTRATOR?
1. a minor
2. a non-resident
3. one who in the opinion of the
court is unfit to exercise the
duties of the trust by reason of:
a) drunkenness
b) improvidence
c) want of understanding and
integrity
d) conviction for an offense
involving moral turpitude
Executor of executor shall not, as such,
administer the estate of the first testator.
(Sec. 2)
Letters testamentary - Authority issued to
an executor named in the will to
administer the estate.
Letters of administration Authority
issued by the court to a COMPETENT
person to administer the estate of the
deceased who died intestate.
TO WHOM LETTERS OF ADMINISTRATION

GRANTED
Order Of Preference
1. The surviving husband or wife or
the next of kin, or both in the
discretion of the court, or to such
person as such surviving spouse or
next of kin, request to have
appointed, if competent and
willing to serve. (SURVIVING
SPOUSE OR NOMINEE)
2. If the surviving spouse or the next
of kin or the person selected by
them be incompetent or unwilling
to serve, or if the surviving spouse
or next of kin neglects for 30 days
after the death of the decedent to
IN
REMEDIAL LAW
apply for administration, ANY one

or more of the PRINCIPAL
CREDITORS, if competent and
willing to serve.
3. If there is no such creditor
competent and willing to serve, it
may be granted to such other
person as the court may select.
(STRANGER)
The Order of appointment of Regular
administrator is final and appealable.
BASIS FOR THE PREFERENTIAL RIGHT
The 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
consequences of waste, improvidence or
mismanagement, have the higher interest
and most influential motive to administer
the estate correctly.
RULE 79
OPPOSING ISSUANCE OF LETTERS
TESTAMENTARY PETITION AND CONTENTS
FOR LETTERS OF ADMINISTRATION
What is the MAIN ISSUE in an
administration proceeding?
Who is the person rightfully entitled to
administration.
Who may oppose the issuance of letters?
GENERAL RULE: Any person interested in
the will. (Section 1)
EXCEPTION: Even where a person who had
filed a petition for the allowance of the
will of the deceased person had no right to
do so in view of his lack of interest in the
estate, nevertheless, where the interested
persons did not object to its application,
the defect in the petition would be
deemed cured. The filing of the petition
may be considered as having been ratified
by the interested parties. (Eusebio vs.
Valmores 97 PHIL 163)
Petition for Opposition may at the same
time be filed for Letters of Administration
with the will annexed.


110
MEMORY AID
Contents of a petition for letters of
administration: (Sec.2)
a) jurisdictional facts;
b) name, age, residence of heirs and
creditors;
c) probable value and character of
the estate; and
d) name of the person for whom
letters is prayed for.
No defect in the petition shall render void
the
issuance
of
the
letters
of
administration.
Grounds for Opposition:
1. In Letters Testamentary
a) incompetence
2. In Letters of Administration
a) incompetence;
b) preferential right of the heir
under Sec. 6, Rule 78.
IN
REMEDIAL LAW
The preference accorded by Sec. 6 of Rule

78 of the Rules of Court to surviving
spouse refers to the appointment of a
regular administrator, NOT to that of
special administrator, and that the order
appointing the later lies within the
discretion of the probate court, and is not
appealable. (Pijuan vs. De Gurrea, 124
Phil. 1527)
POWERS AND DUTIES
1. Possession and charge of the
goods, chattels,
rights, credits,
and estate of the deceased;
2. Commence and maintain suit for
the estate;
3. Sell ONLY
a) perishable property; and
b) those ordered by the court;
4. Pay debts ONLY as may be ordered
by the court.
Publication for 3 Weeks and notice to

heirs, creditors and other persons believed
to have an interest in the estate is
required before hearing.
DURATION OF POWER OF SPECIAL

ADMINISTRATOR
Until questions causing the delay is
decided and the regular administrator is
appointed.
Letters 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. (Sec. 6, Rule 79)
When does the power of a special

administrator cease?
After the questions causing the delay are
resolved and letters are granted to regular
executor or administrator.
RULE 80
SPECIAL ADMINISTRATOR
When may a probate court appoint a
special administrator?
1. Delay in granting of letters
including appeal in the probate of
the will.
2. Executor is a claimant of the
estate he represents.
- in this second instance, the
administrator shall have the
same powers as that of a general
administrator.
ORDER OF APPOINTMENT DISCRETIONARY
Is appointment of special administrator

appealable?
NO, the same is INTERLOCUTORY. However,
appointment
of
a
REGULAR
ADMINISTRATOR is appealable because it is
a final order.
It is possible for the executor or
administrator whose appointment is
challenged by appeal to be appointed also
as the special administrator pending such
appeal. There is no harm in appointing the
same person as special administrator


111
MEMORY AID
because there is a vast of difference
between the powers and duties of the two
positions.
RULE 81
BONDS OF EXECUTOR AND
ADMINISTRATOR
BOND OF EXECUTOR/ADMINISTRATOR
(Sec.1)
When filed?
Before an executor or administrator enters
upon execution of his trust
Amount? Fixed by the court
CONDITIONS
1. Make an INVENTORY of property
which came to his knowledge and
possession within 3 MONTHS.
2. ADMINISTER the estate and from
the proceeds pay all debts
and
charges.
3. Render an ACCOUNT within ONE
YEAR
4. Perform all orders of the court.
ADMINISTRATORS BOND STATUTORY
BOND
Conditions prescribed by statute forms
part of bond agreement.
Terms and effectivity of bond does not
depend on payment of premium and does
not expire until the administration is
closed. As long as the probate court
retains jurisdiction of the estate, the bond

contemplates a continuing liability. (Luzon
Surety vs. Quebrar, 127 SCRA 295).
BOND OF SPECIAL ADMINISTRATOR (Sec.4)
Conditions
1. make inventory.
2. render accounting when required
by court.
3.
IN
REMEDIAL LAW
deliver the same to person

appointed
executor
or
administrator or other authorized
persons.
The bond is effective as long as the court

has jurisdiction over the proceedings.
RULE 82
REVOCATION OF ADMINISTRATION,
DEATH, RESIGNATION AND REMOVAL OF
EXECUTORS AND ADMINISTRATORS
If after letters of administration have been
granted on the estate of the decedent as if
he had died intestate, his will is allowed
and proved by the court, the letters of
administration shall be revoked and all
powers thereunder cease, and the
administrator shall forthwith surrender the
letters to the court, and render his
account within such time as the court may
direct.
The discovery of a will does NOT ipso
facto nullify the letters of administration
already issued until the will has been
proved and allowed pursuant to Rule 82
Sec. 1. (De Parreno vs. Aranzanso, GR No.
L-27657, Aug. 30, 1982)
RESIGNATION
OR
REMOVAL
OF
EXECUTOR/ ADMINISTRATOR (SEC.2)
Grounds
1. neglect to render accounts; (w/in
1 YEAR or when the court directs);
2. neglect to settle estate according
to these rules;
3. neglect to perform an order or
judgment of the court or a duty
expressly provided by these rules;
4. absconding; or
5. insanity
or
incapability
or
unsuitability to discharge the
trust. (Sec. 2)
These grounds are EXCLUSIVE.
Lawful acts of an administrator or
executor
before
the
revocation,


112
MEMORY AID
resignation, or removal are valid unless
proven otherwise. (Sec.3)
POWERS OF NEW EXECUTOR OR
ADMINISTRATOR (Sec. 4)
1. collect and settle the estate not
administered;
2. prosecute or defend actions
commenced by or against the
former executor or administrator;
and
3. recover execution on judgments in
the name of former executor or
administrator.
RULE 83
INVENTORY AND APPRAISAL PROVISION
FOR SUPPORT OF FAMILY
Inventory and appraisal must be made
within 3 MONTHS from the grant of letters
testamentary or of administration. (Sec.1)
Approval of an inventory is not a
conclusive determination of what assets
constituted the decedents estate and of
the valuation thereof. Such determination
is only provisional and a prima facie
finding of the issue of ownership.
ALLOWANCE TO WIDOW AND FAMILY
(Sec.3)
Allowance - monetary advances subject to
collation and deductible from their share
in the estate of the decedent.
Who are entitled to allowance during
proceedings?
1. Legitimate
surviving
spouse
(Nepomuceno vs CA); and
2. Children of the decedent.
According to Art. 188 of the Civil Code,
the children need not be minors or
incapacitated to be entitled to allowance.
(Santero vs CFI of Cavite, GR No. 6170003, Sept. 24, 1987)
IN
REMEDIAL LAW
Grandchildren are NOT entitled to

allowance under Rule 83. (Heirs of Ruiz vs
CA)
When liabilities exceed the asset of the
estate, his widow and children are not
entitled to support pending the liquidation
of the intestate estate, on the ground that
such support, having the character of an
advance payment to be deducted from the
respective share of each heir during
distribution. (Wagner vs. Moore)
RULE 84
GENERAL POWERS OF EXECUTORS AND
ADMINISTRATORS
POWERS OF EXECUTOR/ ADMINISTRATOR
OF THE ESTATE
1. To have access to, and examine
and take copies of books and
papers relating to the partnership
in case of a deceased partner;
2. To examine and make invoices of
the property belonging to the
partnership in case of a deceased
partner;
3. To make improvements on the
properties under administration
with the necessary court approval
except for necessary repairs;
4. To possess and manage the estate
when necessary:
a) for the payment of debts; and
b) for payment of expenses of
administration;
5. To maintain in tenantable repairs
houses and other structures and
fences and to deliver the same in
such repair to the heirs or devisees
when directed so to do by the
court.
SOME RESTRICTIONS ON POWER OF
ADMINISTRATOR/EXECUTOR
1. Cannot acquire by purchase, even
at public or judicial auction,
either in person or mediation of


113
MEMORY AID
2.
3.
4.
5.
6.
another, the property under

administration.
Cannot borrow money without
authority of the court.
Cannot speculate with funds
under administration.
Cannot lease the property for
more than one year.
Cannot continue the business of
the deceased unless authorized by
the court.
Cannot profit by the increase or
decrease in the value of the
property under administration.
RULE 85
ACCOUNTABILITY AND COMPENSATION OF
EXECUTORS AND ADMINISTRATORS
GENERAL RULE: The executor or
administrator is accountable for the whole
estate of the deceased.
EXCEPTION: He is not accountable for
properties which never came to his
possession.
EXCEPTION TO THE EXCEPTION: When
through untruthfulness to the trust or his
own fault or for lack of necessary action,
the executor or administrator failed to
recover part of the estate which came to
his knowledge.
Administrator or executor shall not profit
by the increase of the estate nor be liable
for any decrease which the estate, without
his fault, might have sustained.
EXPENSES OF ADMINISTRATION: those
necessary for the management of the
property, for protecting it against
destruction or deterioration, and possibly
for the production of fruits.
IN
REMEDIAL LAW
RULE: Within one year from the time of

receiving letters testamentary or letters of
administration.
EXCEPTION: An extension of time is
allowed for presenting claims against or
paying the debts of the estate for
disposing of the estate but even in such
cases, the administration should be
terminated in not more than two-years
and a half.
RULE 86
CLAIMS AGAINST ESTATE
Claim - any debt or pecuniary demand
against the decedents estate.
When may a court issue notices to
creditors to file their claims?
Immediately issued after granting letters
testamentary or of administration.
PURPOSE: for the speedy settlement of
the affairs of the deceased person and
early delivery of the property of the estate
into the hands of the persons entitled to
receive it.
Claims arising AFTER his death cannot be
presented except for:
a) funeral expenses; and
b) expenses of the last sickness of
the decedent.
Claims for taxes (inheritance and estate)
due and assessed after the death of the
decedent need not be presented in the
form of a claim. The court in the exercise
of its administrative control over the
executor or administrator may direct the
latter to pay such taxes. And the heirs,
even after distribution are liable for such
taxes.
STATUTE OF NON-CLAIMS (Sec.2)
When shall executor or administrator

render an account? (Sec.8)
When should the claims be filed?

GENERAL RULE: Within in the time fixed
in the notice which shall not more than 12


114
MONTHS nor less than 6 MONTHS after the

date
of
the
FIRST
PUBLICATION.
Otherwise, they are BARRED FOREVER.
Even if the testator acknowledged the
debt in his will and instructed the
executor to pay the debt, the statute of
non-claims must still be complied with;
otherwise the claim may also be barred.
MEMORY AID
IN
6. Judgment
decedent.
for
REMEDIAL LAW
money
against
Contingent Claim conditional claim or

claim that are subject to the happening of
a future uncertain event.
Claims not yet due or contingent may be
approved at their present value.
EXCEPTION: Belated Claims.

Belated Claims are claims not filed within
the original period fixed by the court. On
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
equitable, allow such claim to be filed
within a time NOT EXCEEDING 1 MONTH
from the order allowing belated claims.
Statute of Non-Claims supersedes the
Statute of Limitations insofar as the debts
of deceased persons are concerned.
However, BOTH statute of Non-Claims and
Statute of Limitations MUST CONCUR in
order for a creditor to collect.
Claims which are not filed within the
Statute of Non-Claims are barred forever
(Sec.5)
Claims 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. (Olave vs. Carlos,
208 Phil 678)
Claims which should be filed under the
Statute of Non-claims?
1. Money claims, debts incurred by
deceased during his lifetime
arising from contract
2. express or implied
3. due or not due
4. absolute or contingent
5. Claims for funeral expenses and
for the last illness of the
decedent.
HOWEVER, a creditor barred by the

Statute of Non-claims may file a claim as a
COUNTERCLAIM in any suit that the
executor or administrator may bring
against such creditor.
SOLIDARY OBLIGATION OF DECEDENT
(Sec.6)
Claim should be filed against decedent as
if he were the only debtor without
prejudice on the part of the estate to
recover contribution from the other
debtor. (Jaucian vs Quero, 38 Phil 707l)
Joint obligation of decedent
The claim must be confined to the portion
belonging to the decedent.
MORTGAGE
(Sec.7)
DEBT DUE
FROM
ESTATE
ALTERNATIVE REMEDIES Of The Creditor

Holding A Claim Secured By A Mortgage
Or Other Collateral Security
1. ABANDON security and prosecute
his claim against the estate and
share in the same general
distribution of the assets of the
estate;
2. FORECLOSE his mortgage or realize
upon his security by action in court
making executor or administrator
a party defendant and if there is
judgment for DEFICIENCY, he may
file a claim (contingent) against
the estate within the statute of
non-claims.
Agency coupled with an interest


115
MEMORY AID
The power to foreclose a mortgage is
not
an
ordinary
agency
that
contemplates
exclusively
the
representation of the principal by the
agent but is primarily an authority
conferred upon the mortgagee for
latters own protection. That power
survives the death of the mortgagor.
(Bicol Savings and Loan Association vs.
CA)
3. RELY SOLELY ON HIS MORTGAGE
and foreclose the name at anytime
within the period of the statute of
limitation but he cannot be
admitted as creditor and shall not
receive in the distribution of the
other assets of the estate;
These remedies are alternative, the
availment of one bars the availment of
other remedies.
JUDGMENT ALLOWING CLAIM (Sec.13)
Judgment
against
executor
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.
Judgment of a probate court approving or
disapproving a claim is appealable.
The mode of appeal is record on appeal
and must be filed within 30 DAYS from
notice of judgment.
RULE 87
ACTIONS BY AND AGAINST EXECUTORS
AND ADMINISTRATORS
Actions which may or may not be
brought
against
executor
and
administrator (Sec.1)
Independent and separate of the probate
proceeding:
IN
REMEDIAL LAW
1. recovery 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
injury to person or property, real
or personal (tortuous acts)
These are actions that survive the death of
the decedent.
An action for revival of money judgment
may be filed against the administrator to
preempt
prescription
of
judgment.
(Romualdez vs. Tiglao, 105 SCRA 762).
Heir may not sue until share assigned
(Sec.3)
Before distribution is made or before any
residue is known, the heirs and devisees
have no cause of action against the
executor or administrator for recovery of
the property left by the decedent.
Proceedings when property concealed,
embezzled or fraudulently conveyed
(Sec.6)
PURPOSE: To elicit information or to
secure evidence from those persons
suspected as having possessed or having
knowledge of properties belonging to
deceased, or of having concealed,
embezzled or conveyed away any
properties of the deceased.
GENERAL RULE: The probate court has no
authority to decide whether or not the
properties belong to the estate or to the
person being examined since probate
courts are courts of limited jurisdiction.
EXCEPTIONS:
1. Provisional
determination
of
ownership for inclusion in the
inventory; or
2. Submission
to
the
courts
jurisdiction (Bernardo vs. CA, GR
No. 82483, Sept. 26, 1990)
Embezzlement
(Sec.8)
before
letters
issued


116
MEMORY AID
IN
REMEDIAL LAW
The responsible person shall be liable to

an action in favor of the executor or
administrator of the estate for double the
value of the property sold, embezzled, or
alienated, to be recovered for the benefit
of the estate.
administrator himself, in which event the

action should be in the name of all
creditors.
Property fraudulently conveyed by the

deceased may be recovered. When
executed or administered must bring
action (Sec.9)
This provision applies when there is a
deficiency of assets in the hands of the
executor or administrator for the payment
of
the
debts
and
expenses
for
administration
administration for it is under this
circumstance
that
there
may
be
conveyances made by the deceased with
intent to defraud the creditor.
Debts paid in full if estate sufficient

(Sec.1)
If estate is insolvent, as in liabilities are
more than the assets, Sec.7 in relation to
Art. 1059 and 2239 to 2251 of the Civil
Code must apply. Use rule on preference
of creditors If it is sufficient to satisfy
claims of a class.
REQUISITES BEFORE ACTION MAY BE

FILED
1. deficiency in assets
2. the conveyance made is void (when
there are badges of fraud)
3. subject of conveyance is liable for
attachment in lifetime of decedent.
When creditor may bring action. Lien for
costs (Sec.10)
When a grantee in a fraudulent
conveyance is OTHER THAN THE EXECUTOR
OR ADMINISTRATOR, a creditor may
commence and prosecute the action if the
following requisites are present:
1. That the executor or administrator
has shown to have no desire to file
the action or failed to institute the
same within the reasonable time;
2. Leave is granted by court to
creditor to file the action;
3. Bond is filed by creditor as
prescribed in this provision; and
4. Action by creditor is in the name
of the executor or administrator.
These requisites need not be complied
with if the grantee of the fraudulent
conveyance
is
the
executor
or
RULE 88
When the will provides for payment of

debts, Section 2 must be followed.
Although testator acknowledged a specific
debt on his will, the creditor must still file
his claim in the testate or intestate
proceedings, otherwise his claim will be
barred.
Estate to be retained to meet contingent
claims (Sec.4)
If the court is satisfied that contingent
claim duly filed is valid, it may order the
executor or administrator to retain in his
hands sufficient estate to pay a portion
equal to the dividend of the creditors.
REQUISITES
1. contingent claim is duly filed;
2. court is satisfied that the claim is
valid; and
3. The claim has become absolute.
Is execution a proper remedy to satisfy
an approved claim?
NO, because:
1. Payment approving a claim does
not create a lien upon a property
of the estate.
2. Special procedure is for the court
to order the sale to satisfy the
claim.


117
MEMORY AID
How contingent claim becoming absolute
in two years allowed and paid (Sec.5)
If such contingent claim becomes absolute
and is presented to the court, or to the
executor or administrator, within two
years from the time limited for other
creditors to present their claims. The
residual funds within the estate, although
already in the possession of the universal
heirs, are funds of the estate. The Court
has jurisdiction over them and it could
compel the heirs to deliver to the
administrator of the estate the necessary
portion of such funds for the payment of
any claims against the estate. (In re
Testate Estate of Margarita David, Sison
vs. Teodoro, 98 Phil 680)
If the contingent claim matures after the
expiration 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. (Jaucian
vs. Querol, supra)
It has been ruled that the only instance
wherein a creditor can file an action
against a distributee of the debtors assets
is under Sec. 5, Rule 88 of the Rules of
Court. The contingent claims must first
have been established and allowed in the
probate court before the creditors can file
an action directly against the distributees.
(De Bautista vs. De Guzman, 125 SCRA
682)
Estate of Insolvent nonresident, how
disposed (Sec.9)
In the administration taken in the
Philippines of the estate of the INSOLVENT
his estate in the Philippines shall be
disposed of that his creditors in and
outside in the Philippines in proportion to
their respective credits.
When and how claim proved outside the
Philippines against insolvent residents
estate paid (Sec.10)
Claims proven outside the Philippines
where the executor had knowledge and
IN
REMEDIAL LAW
opportunity to contest its allowance

therein may be added to the list of claims
in the Philippines against the estate of an
INSOLVENT RESIDENT and the estate will
be distributed equally among those
creditors.
However the benefit of Sections 9 and 10
cannot be extended to the creditors of
foreign country where the property of the
deceased
therein
is
not
equally
apportioned to creditors residing in the
Philippines and other creditors.
Time for paying Debts and Legacies
(Sec.15)
Need not exceed 1 year in the first
instance. But court extend on application
of executor or administrator and after
hearing and notice thereof.
Extension must not exceed six months for
single extension. Whole period allowed to
the original executor or administrator shall
not exceed 2 years (section 15) successor
of dead executor or administrator may be
given an extension not to exceed 6
months.
RULE 89
SALES, MORTGAGE AND OTHER
ENCUMBRANCES OF THE PROPERTY OF
THE DECEASED
Order of sale of personalty (Sec.1)
The court may order the whole or part of
the personal estate to be sold if necessary:
1. to pay debts and expense of
administration;
2. to pay legacies; or
3. to cover expenses for the
preservation of the estate.
When court may authorize sale,
mortgage or other encumbrances of
realty to pay debts and legacies though
personality not exhausted? (Sec. 2)


118
MEMORY AID
1. If personal estate is NOT sufficient
to pay debts, expenses of
administration and legacies;
2. If sale of personal estate may
injure the business or interests of
those interested in the estate;
3. If testator has NOT made sufficient
provision for payment of such
debts, expenses and legacies;
4. If deceased was in his lifetime
under contract, binding in law to
deed real property to beneficiary;
(Section 8)
5. If the deceased during his lifetime
held real property in trust for
another person. (Section 9)
REQUISITES
a) application of
Executor/Administrator;
b) written notice to person
interested; and
c) hearing
Assets
in
the
hands
of
executor/administrator
will
not
be
reduced to prevent a creditor from
receiving his full debt or diminish his
dividends.
Without notice and hearing, the sale,
mortgage or encumbrance is void. Notice
is mandatory. Noncompliance therewith
under the sale is null and void.
Reason:
The reason behind this
requirement is that the heirs are the
presumptive owner. Since they succeed to
all the rights and obligation of the
deceased from the moment of the latters
death, they are the person directly
affected by the sale or mortgage and
therefore cannot be deprived of the
property, except in the manner provided
by law. (Maneclang vs. Baun, 208 SCRA
179)
May the court authorize sale, mortgage
or other encumbrance of estate to pay
debts and legacies in other countries?
(Sec. 5)
IN
REMEDIAL LAW
When 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 expenses.
Application for authority to sell, mortgage
or encumber property of the estate may
be denied by the court if:
1. the disposition is not for any of the
reasons specified by the rules; OR
2. under Section 3 Rule 89, any
person interested in the estate
gives a bond conditioned to pay
the
debts,
expenses
of
administration and legacies.
RULE 90
DISTRIBUTION AND PARTITION OF THE
ESTATE
Liquidation means the determination of
all assets of the estate and payment of all
debts and expenses.
When order for distribution of residue
made (Sec.1)
RULE: ORDER OF DISTRIBUTION shall be
made AFTER payments of all debts, funeral
expenses, expenses for administration,
allowance of widow and inheritance tax is
effected.
In these proceedings, the court shall:
1. collate;
2. determine heirs; and
3. determine the share of each heir.
A separate action for the declaration of
heirs is not necessary.
When is title vested?
From FINALITY of order of distribution.
Only after partition is approved and not
before, the court may order the delivery
to the heirs of their respective shares


119
MEMORY AID
except when the heir file
conditioned to pay the debts.
IN
REMEDIAL LAW
bond
An order which determines the distributive

shares of heirs is appealable. If not
appealed, it becomes final.
The probate court lose jurisdiction over
the settlement proceedings only upon
payment of all debts and expenses of the
obligor and delivery of the entire estate to
all the heirs. (Timbol vs. Cano, 1 SCRA
1271)
CONDITIONS PRECEDENT to be complied
with for the issuance of an order of
distribution
1. Showing
that
the
executor,
administrator or person interested
in the estate applied for such; and
2. The requirements as to notice and
hearing upon such application have
been fulfilled.
PROHIBITION AGAINST INTERFERENCE BY
OTHER COURTS
As long as the order of distribution of the
estate has not been complied with, the
probate
probate proceedings cannot be deemed
closed and terminated, because a judicial
partition is not final and conclusive and
does not prevent the heirs from bringing
an action to obtain his share, provided the
prescriptive period therefore has not
elapsed. The better practice, however,
for the heir who has not received his
share, is to demand his share through
proper motion in the same probate or
administrative proceedings, or for the
reopening of the probate or administrative
proceedings if it had already been closed,
and not through an independent action,
which would be tried by another court or
judge which may thus reverse a decision or
order of the probate or intestate court
already final and executed and re-shuffle
properties long ago distributed and
disposed of. (Timbol vs. Cano, supra).
RULE 91
ESCHEATS
3 INSTANCES of ESCHEATS
1. When a person dies intestate
leaving no heir but leaving
property
in
the
Philippines
(Section 1)
2. REVERSION PROCEEDINGS Sale in
violation of the Constitutional
provision
3. Unclaimed Balance Act under
Banking Laws
What is the basis of the states right to
receive property in escheat?
Order of succession under the Civil Code,
the STATE is the last heir of the decedent.
Who files?
Solicitor General or his representative in
behalf of the Philippines.
Where to file?
RTC of last residence or of location of his
estate in the Philippines if he is a nonresident.
If petition is sufficient in FORM and
SUBSTANCE the court shall:
1. Make an ORDER OF HEARING
hearing shall not be more than 6
MONTHS AFTER ENTRY OF ORDER.
2. Direct publication of the copy of
order at least once a week for 6
CONSECUTIVE WEEKS.
REQUISITES
1. publication of the order
2. person died intestate
3. he is seized of real/personal
property in the Philippines
4. he left no heir or person entitled
to such property
5. there is no sufficient cause to the
contrary


120
MEMORY AID
The court, at the instance of an interested
party, or on its own motion, may order the
establishment of a PERMANENT TRUST, so
that only the income from the property
shall be used.
CLAIM BY PERSONS ENTITLED TO THE
ESTATE (Sec. 4)
Who?
By devisee, legatee, heir, widow/er, or
other person entitled thereto)
When to file?
- Within 5 YEARS FROM DATE OF
JUDGEMENT otherwise forever barred.
OTHER ACTIONS FOR ESCHEATS (Sec. 5)
- actions for reversion of property
alienated
in
violation
of
Constitution or any statute.
- These shall be governed by Rule
91. HOWEVER, the action must be
instituted in the province where
the land lies in whole or in part.
Period: Within 5 years from the date of
judgment; (under ART. 1014 of the Civil
Code, the 5-year period is reckoned from
the date the property was delivered 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.)
By whom: person of interest
TO WHOM WILL THE PROPERTY
ESCHEATED BE ASSIGNED: (Sec. 3)
1. if personal property, in the
municipality or city where he last
resided.
2. if real property, where the
property is situated.
3. if deceased never resided in the
Philippines, where the property
may be found.
Can court convert escheat proceedings
into ordinary special proceedings or
vice-versa?
IN
REMEDIAL LAW
NO. This is not allowed for the two actions

have different requirements in acquiring
jurisdiction. In special proceedings,
publication is once a week for 3 weeks
while in escheat, once a week for 6 weeks.
RULE 92
GUARDIANSHIP
Guardianship of minors is now governed
by the Rule on Guardianship of
Minors (A.M. No. 03-02-05-SC) which
took effect on May 1, 2003. While
guardianship of incompetents is still
governed by the provisions of the
Rules of Court on Guardianship (Rule
92 to Rule 97).
MINOR
1.
2.
INCOMPETENT
any relative; or
other person on
behalf of a minor;
or
3. the
minor
himself if 14 years
of age or over; or
4. the Secretary of
1.
2.
3.
any relative;
friend; or
other person on
behalf
of
the
resident incompetent who has no
parents or lawful
guardian; or
Social Welfare and

Development AND
by the Secretary of
Health in case of an
insane minor who
needs
to
be
hospitalized. (Sec.
2 AM 03-02-05-SC)
4.
the Director of
Health in favor of
an insane person
who
should
be
hospitalized or in
favor of an isolated
leper. (Sec. 1)
5. any one interested

in the estate of a
non-resident
incompetent
(Sec.12)
5. any one interested

in the estate of a
non-resident
incompetent (Sec.
6)
Jurisdiction:
Incompetents RTC of his

residence or where his property is
located in case of non-residents (Sec.
1)


121
MEMORY AID
Minor Family Court of his

residence or where his property is
located in case of non-resident (Sec.
3, AM 03-02-08)
KINDS OF GUARDIANS
A. According to scope:
1. General - over the person of the
ward or over his property
2. Limited - over the property only
B. According to constitution:
1. general guardian
2. legal guardian
3. guardian ad litem
INCOMPETENT includes: (Sec. 2)
1. those suffering from penalty of
civil interdiction
2. hospitalized lepers
3. prodigals
4. deaf and dumb who are unable to
read and write
5. those of unsound mind though they
have lucid intervals
6. persons not of unsound mind but
by reason of age, disease, weak
mind and other similar causes
cannot take care of themselves or
manage their property.
RULE 93
APPOINTMENT OF GUARDIANS
Who may petition for appointment of
guardian?
The father and the mother shall jointly
exercise legal guardianship over the
person and property of their minor without
the necessity of a court appointment. In
such case, this Rule shall be suppletory to
the provisions of the Family Code on
Guardianship.
a)
b)
c)
d)
e)
f)
g)
h)
the
jurisdictional
facts;
the name, age
and residence
of
the
prospective
ward;
the
ground
rendering
the
appointment
necessary
or
convenient;
the death of
the parents of
the minor or
the
termination,
deprivation or
suspension
of
their parental
authority;
the remarriage
of the minors
surviving
parent;
the
names,
ages,
and
residences
of
relative within
the 4th civil
degree
of
minor, and of
persons having
him in their
care
and
custody;
the
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.
IN
REMEDIAL LAW
a)
b)
c)
d)
e)
f)
the
jurisdictional
facts;
the minority or
incompetency
rendering
the
appointment
necessary
or
convenient;
the
probable
value
and
character of his
estate;
the
names,
ages,
and
residences
of
the relatives of
the minor or
incompetent,
and of the
persons having
him in their
care;
the name of the
person
for
whom letters of
guardianship.
(Sec. 2 Rule 93)
Contents of Petition
MINOR
INCOMPETENT
The petition involving minors is required

to be VERIFIED and accompanied by
certification against FORUM SHOPPING
while that involving incompetent must be


122
MEMORY AID
verified only. HOWEVER, no defect in the
petition or verification shall render void
the issuance of letters of guardianship.
There is NO requirement for PUBLICATION,
only notice EXCEPT in case of nonresident
minor/incompetent.
HOWEVER, service of NOTICE upon minor if
14 years of age or over, or upon
incompetent
is
mandatory
and
jurisdictional.
If the person is insane, service of notice
upon the Director of Hospital where
hospitalized is sufficient.
OPPOSITION TO PETITION (Sec. 4)
Grounds
1. majority of alleged minor
2. competency
of
alleged
incompetent
3. unsuitability of the persons for
whom letters are prayed
Procedure
a. filing of petition
b. court shall set the case for
hearing
c. cause notices to be served to
the persons mentioned in the
petition, including minor, if 14
years and above
d. court shall receive evidence
e. declaration of the propriety of
the petition
f. issue letters of guardianship
BONDS OF GUARDIANS
Before an appointed guardian enters upon
the execution of his trust, he shall give a
BOND (Sec. 1 Rule 94).
SELLING AND ENCUMBERING PROPERTY
OF WARD:
A. Grounds
1. when income of estate is
insufficient to maintain ward and
IN
REMEDIAL LAW
family or to maintain and

educate ward when a minor; or
2. when it appears that it is for the
benefit of the ward.
B. Requirements
1. petition must be verified;
2. notice must be given to the next
of kin; and
3. hearing so that they may show
cause why petition should not be
granted.
Notice to next of kin and interested

persons is JURISDICTIONAL.
Next of kin - pertains to those relatives
who are entitled to share in the estate of
the ward under the Law on Intestate
succession including those who inherit per
stirpes or by right of representation.
Sale of the wards realty by the guardian
without authority from the court is VOID.
Under 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 judicial approval
(Lindain vs. CA, GR No. 95305, Aug. 20,
1992).
The Order of Sale must specify the
grounds.
C. Duration of the order for sale and
encumbrance of property - Within 1
year from the granting of the order. It
is presumed that if the property was
not sold within 1 year, the ward has
sufficient income.
The authority to sell or encumber shall not
extend beyond 1 year unless renewed by
the court.
GENERAL POWERS AND DUTIES
GUARDIANS
1. have the care and custody of
person of the ward, and
management of his estate, or
OF
the
the
the


123
MEMORY AID
2.
3.
4.
5.
6.
management of the estate only, as

the case may be;
pay the debts of the ward;
settle accounts, collect debts and
appear in actions for ward;
manage the estate of the ward
frugally, and apply the proceeds to
maintenance of the ward;
render verified inventory verified
within 3 MONTHS after his
appointment
and
annually
thereafter upon application of
interested persons; and
render to court for its approval an
accounting of the property for 1
YEAR from his appointment &
every year thereafter.
TERMINATION OF GUARDIANSHIP
A. Grounds for termination
MINOR
INCOMPETENT
1. The ward has
1. competency
come of age; or
2. has died
of the ward has

been judicially
determined
2. guardianship
is no longer
necessary
B. Grounds for removal of a guardian:

1. insanity;
2. incapability or unsuitability to
discharge functions;
3. wastage or mismanagement of
the property of the ward; and
4. failure to render an account or
make a return within 30 days
after it was due.
SALIENT FEATURES and SPECIAL RULES
FOUND IN THE RULE ON GUARDIANSHIP
OF MINORS (A.M. No. 03-02-05-SC,
effective May 1, 2003)
A. Grounds for Petition (Sec. 4)
1. Continued Absence, or Incapacity
or Death of his parents; (AID)
IN
REMEDIAL LAW
2. Suspension,
Termination
or
Deprivation of parental authority;
(STD)
3. Remarriage of his surviving parent,
if the latter is found unsuitable to
exercise parental authority;
4. When the best interest of the
minor so requires.
B. Qualifications of Guardians (Sec. 5)
1. Moral character
2. Physical, mental and psychological
condition
3. Financial status
4. Relationship of trust with the
minor
5. Availability to exercise the powers
and duties of a guardian for the
full period of guardianship
6. Lack of conflict of interest with
the minor
7. Ability to manage the property of
the minor.
C. Who may be appointed guardian of
the person or property, or both, of a
minor (Sec.6)
In default of parents or a court
appointed guardian, the court may the
following observing as far as,
practicable,
the
ORDER
OF
PREFERENCE:
1. the SURVIVING GRANDPARENT and
in case several grandparents
survive, the court shall select any
of them taking into account all
relevant considerations;
2. the OLDEST BROTHER OR SISTER of
the minor over twenty-one years
of age, unless unfit or disqualified;
3. the ACTUAL CUSTODIAN of the
minor over twenty-one years of
age, unless unfit or disqualified;
and
4. any OTHER PERSON, who in the
sound discretion of the court
would serve the best interests of
the minor.
D. Case Study Report (Sec. 9)


124
MEMORY AID
IN
REMEDIAL LAW
The court shall order a social worker

to conduct a case study of the minor
and all prospective guardians and
submit report and recommendation to
the court for its guidance before the
scheduled hearing.
guardian shall notify the court of such fact

within 10 days of its occurrence.
E. Bond of parents as guardians of

property of minor (Sec. 16)
If the market value of the property on
the annual income of the child
exceeds
P50,000,
the
parent
concerned shall furnish a bond in such
amount as the court may determine,
but in no case less than 10% of the
value of such property or income, to
guarantee the performance of the
obligations prescribed for general
guardians.
Jurisdiction: RTC in which the will was

allowed, if it be a will allowed in the
Philippines, otherwise by the RTC of the
province in which the property, or some
portion thereof, affected by the trust is
situated.
A verified petition for approval of the bond

shall be filed in the Family Court of the
place where the child resides or, if the
child resides in a foreign country, in the
Family court of the place where the
property or any part thereof is situated.
The petition shall be docketed as a
summary special proceeding in which all
incidents and issues regarding the
performance of the obligations of a
general guardian shall be heard and
resolved.
REMOVAL OR RESIGNATION OF GUARDIAN
(Sec. 24)
No motion for removal or resignation shall
be granted unless the guardian has
submitted the proper accounting of the
property of the ward and the court has
approved the same.
Grounds for termination of guardianship
(Sec. 25).
The court motu propio or upon verified
motion of any person allowed to file a
petition for guardianship may terminate
the guardianship on the ground that the
ward has COME OF AGE or has DIED. The
RULE 98
TRUSTEES
A trustee is necessary to carry into effect:

a) A will where the testator omitted
to appoint a trustee in the
Philippines (Testamentary Trust);
and
b) Other written instruments where
the trustee therein declines,
resigns, dies, or is removed before
accomplishment
of
trust
(Contractual Trust).
No persons succeeding to a trust as
executor or administrator of a formal
trustee shall be required to accept such
trust.
TRUSTEE APPOINTED ABROAD (Sec. 4)
When land in the Philippines is held in
trust for a resident by a trustee who
derives his authority from abroad, such
trustee must petition the RTC where the
land is situated, otherwise, the trust will
be vacant and a new trustee will be
appointed.
When a trust is created abroad for
property in the Philippines, judicial
approval is still needed though trustor is
alive.
BOND OF TRUSTEES (Sec. 5)
Neglect of trustees to file a bond will be
interpreted by the court as resignation or
decline to accept the trust.


125
MEMORY AID
However, he may be exempted from bond
when requested by:
a. testator;
b. All persons beneficially interested
in the trust.
However, the court may cancel such
exemption anytime.
REMOVAL OR RESIGNATION OF THE
TRUSTEE (Sec. 8)
REQUISITES
1. Petition
filed
by
parties
beneficially interested;
2. Notice to trustee; and
3. Hearing.
Who may petition?
Parties beneficially interested.
IN
REMEDIAL LAW
PURPOSE OF ADOPTION
The 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
objective.
WHAT DOES THE COURT DETERMINE IN
ADOPTION CASES
1. capacity of the adopters
2. whether the adoption would be
the best interest of the child
Adoption is strictly personal between the
adopter and the adopted. (Teofico vs. Del
Val)
RULES ON ADOPTION (Secs. 1-25)
Grounds
1. essential in the interest of
petitioners
2. insanity
3. incapability of discharging trustee
4. unsuitability
Rules on Sale and Encumbrance of Trust
Estate shall conform as nearly as may be
to the provisions on Sale and Encumbrance
by Guardians.
ADOPTION AND CUSTODY OF MINORS
The provisions of the Rules of Court on
Adoption have been amended by the
Domestic Adoption Act of 1998 and the
Intercountry Adoption Act of 1995
EXCEPT: Secs 6 & 7 of Rule 99
Effective August 22, 2002, there is a
new Rule on Adoption.
NATURE AND CONCEPT OF ADOPTION
Adoption is a juridical act, a proceeding IN
REM, which creates between two persons a
relationship similar to that which results
from legitimate paternity and filiation.
Only an adoption made through the court,
or in pursuance with the procedure laid
down under Rule on Adoption is valid in
this jurisdiction.
DOMESTIC ADOPTION
WHO MAY ADOPT
1. Any Filipino Citizen a) of legal age;
b) in possession of full civil capacity
and legal rights;
c) of good moral character;
d) has not been convicted of any
crime involving moral turpitude;
e) emotionally and psychologically
capable of caring for children;
f) in a position to support and care
for his/her children in keeping
with the means of the family; and
g) at least 16 YEARS older than the
adoptee.
2. Any alien possessing the same
qualifications as above; provided:
a) That
his/her
country
has
diplomatic relations with the
PHILIPPINES;
b) That he/she has been living in the
Philippines
for
at
least
3
CONTINUOUS YEARS prior to the
filing of the application for
adoption;
c) Maintains residence until the
adoption decree is entered;


126
MEMORY AID
d) Certified to have legal capacity to
adopt, by his/her country; and
e) That his/her government allows
the adoptee to enter his/her
country
as
his/her
adopted
son/daughter.
3. The guardian with respect to the ward
after
the
termination
of
the
guardianship and clearance of his
financial accountabilities.
The requirement of 16 YEARS difference
between the adopter and the adoptee is
NOT applicable if the adopter is:
1. the biological parent of the adoptee
2. the spouse of the adoptees parent
The requirement on residency and
certification of aliens qualification to
adopt may be WAIVED for the following:
1. The adoptee is a former Filipino
citizen who seeks to adopt a
relative within the 4th degree of
consanguinity or affinity.
2. One who seeks to adopt the
legitimate son/daughter of his/her
Filipino spouse.
3. One who is married to a Filipino
citizen and seeks to adopt jointly
with his/her spouse a relative
within
the
4th
degree
of
consanguinity or affinity of the
Filipino spouse.
WHO MAY BE ADOPTED
1. Any person below eighteen (18)
years of age who has been
judicially declared available for
adoption OR voluntarily committed
to DSWD.
2. The legitimate child of one spouse
by the other spouse.
3. An illegitimate child by a qualified
adopter to raise the status 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
IN
REMEDIAL LAW
treated by the adopters as their

own child since minority.
5. A child whose adoption has been
previously rescinded.
6. A child whose biological or
adoptive parents have died.
7. A child not otherwise disqualified
by law or these rules.
GENERAL RULE: Husband and wife shall
jointly adopt.
EXCEPTIONS:
1. If one spouse seeks to adopt the
legitimate son/daughter of the
other.
2. If one spouse seeks to adopt
his/her
own
illegitimate
son/daughter.
3. If the spouses are legally
separated from each other.
VENUE (Sec.6)
Family Court where the prospective
adoptive parents reside.
Petition shall be verified and specifically
state at the heading of the initiatory
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.
A certification of non-forum shopping shall
be included pursuant to Section 5, Rule 7
of the 1997 Rules of Civil Procedure.
PROCEDURE
A. ORDER OF HEARING (Sec.12)
- must be published at least once a
week for 3 CONSECUTIVE WKS.
- at the discretion of the court,
copies of the order of hearing shall
be furnished to the office of the
Sol.Gen. through the provincial or
city prosecutor, the DSWD and the
biological parents of the adoptee,
IF KNOWN.
- if a change in the name of the
adoptee is prayed for in the


127
MEMORY AID
petition, notice to the Sol. Gen.
Shall be MANDATORY.
B. CHILD & HOME STUDY REPORTS
(Sec.13)
- social worker verifies with the
Civil Registry the real identity and
the name of adoptee and the fact
that he is legally available for
adoption.
social
worker
may
make
recommendations to the court if
he finds some grounds to deny the
petition.
C. HEARING (sec.14)
- to be held within 6 MONTHS from
the date of issuance of the order
EXCEPT: in case of APPLICATION FOR
CHANGE OF NAME which hearing must
not be within 4 MONTHS after LAST
PUBLICATION nor within 30 DAYS prior
to election.
- the petitioner and the adoptee
must personally appear and the
former must testify in court.
D. SUPERVISED TRIAL CUSTODY (STC)
(Sec.15)
Before issuance of decree of adoption
the court shall give the adopter trial
custody of the adoptee for at least 6
MONTHS.
Reason: So the parties will adjust
psychologically and emotionally to
each other and establish a bonding
relationship.
Court may reduce or exempt parties
from STC.
IN
REMEDIAL LAW
In case of change of name, the decree

shall be submitted to the Civil
Registrar where the court issuing the
same is situated.
An amended birth certificate shall be
issued. The original birth certificate
shall be stamped cancelled and shall
be sealed in the Civil Registry records.
The new birth certificate to be issued to
the adoptee shall not bear any notation
that it is an amended issue.
EFFECTS OF ADOPTION
1. adopter will exercise parental
authority.
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.
All
hearings
and
confidential. (Sec.18)
records
are
INTER COUNTRY ADOPTION

(Secs. 26-32)
GENERAL RULE:
Alien adopter must complete the 6
MONTHS STC.
EXCEPTION:
Same as Exemptions from requirements of
residency and certification.
Where to file Petition?

- A verified petition to adopt a Filipino
child may be filed by a foreign
national
or
Filipino
citizen
permanently residing abroad with the
Family Court having jurisdiction over
the place where the child resides or
may be found.
- It may be filed directly with the InterCountry Adoption Board.
E. DECREE OF ADOPTION
If issued, this will take effect as of the
date of filing of the original petition.
WHO MAY ADOPT

1. any alien or Filipino citizen
permanently residing abroad who


128
MEMORY AID
is at least twenty-seven (27) years
of age;
2. other requirements same as with
RA 8552.
IN
REMEDIAL LAW
Period within which to file VERIFIED

petition (Sec. 21)
5 YEARS from reaching age of majority or
from recovery of incompetency.
WHO MAY BE ADOPTED

Only a legally free child may be the
subject of inter-country adoption.
Adverse party shall file his ANSWER within

15 days from receipt of order of court
requiring him to answer. (Sec. 22)
A child under the Inter-Country

Adoption Act is defined as any person
below fifteen (15) years of age.
EFFECTS OF JUDGMENT OF RESCISSION

1. parental authority or legal custody
will be restored
2. reciprocal rights of adoptee and
adopter will be extinguished
3. vested rights required prior to
judicial
rescission
shall
be
respected
4. adoptee shall use the name stated
in his original borth or foundling
certificate
5. civil registrar will reinstate his
original
birth
or
foundling
certificate
RESCISSION AND REVOCATION OF

ADOPTION
Under the Domestic Adoption Act of
1998, the ADOPTER CAN NO LONGER
REVOKE the adoption, he can merely
disinherit the adoptee in accordance with
the provisions of the Civil Code.
In revocation, it relates only as to the date
of the judgment. Hence in revocation,
vested rights prior to rescission should be
respected.
Who files?
1. ADOPTEE
a) over 18 years of age or
b) if minor with assistance of
DSWD
2. GUARDIAN
if
over
18
but
incapacitated or COUNSEL
Grounds
1. repeated physical violence and
verbal maltreatment by the
adopter despite having undergone
counseling;
2. attempt on the life of the adopter;
3. sexual assault or violence; or
4. abandonment or failure to comply
with parental obligations.
Venue
FAMILY COURT of the city or province
where the adoptee resides. (Sec. 20)
Unlike in revocation of guardianship,

revocation of adoption is a separate
proceeding from the adoption.
RULE 99, SECTIONS 6 & 7
Sections 6 and 7 of Rule 99 of the Rules
of Court referring to Custody of Minors are
still valid provisions.
Rule 99, Section 6. Proceedings as to
child whose parents are separated.
The question as to the care and custody
and control of a child or children of their
marriage is brought before a Regional Trial
Court by Petition or as an incident to any
other proceedings.
When parents considered unfit to take
charge of the child
1. by reason of moral depravity
2. habitual drunkenness
3. incapacity
4. poverty
ORDER OF PREFERENCE in case the
parents are unfit
1. Parental/Maternal grandparents


129
MEMORY AID
2. Childs oldest brother or sister
3. Some reputable or discreet person
4. Any suitable asylum, childrens
home or benevolent society.
No child under seven (7) years of age shall
be separated from its mother, unless the
court fins there are compelling reasons
therefor.
Rule 99, Section 7. Custody of Vagrant or
Abused Child
Jurisdiction and Venue
Family Courts of the territory where the
petitioner resides.
Grounds
1. Parents of the minor are dead;
2. Parents have abandoned the child
by reason of long absence or legal
or physical impossibility;
3. Parents cannot support the child;
4. Parents treat the child with
excessive harshness;
5. Parents give the child corrupting
orders, counsels or examples;
6. Parents cause or allow the child to
engage in begging;
7. Parents cause or allow child to
commit offenses against the law.
PROCEDURE
1. Filing of Petition by a reputable
resident of the province
2. Show Cause Order directed to
parents or in case the parents are
dead or cannot be found, requiring
the fiscal of the province to show
cause, why the child should not be
taken from its parents, if living
3. Hearing and Order
4. Service of Judgment upon the
Civil Registrar of the city or
municipality where the court
issuing the same is situated.
RULE 101
PROCEEDINGS FOR HOSPITALIZATION OF
INSANE PERSONS
IN
REMEDIAL LAW
Venue
RTC of province where the person alleged
to be insane is found.
Who files?
Director of Health with assistance of city
or provincial fiscal.
Requisites
1. Director of Health 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. Such person or one having charge
of him is opposed or his being
taken to hospital or asylum
DISCHARGE OF INSANE (Sec. 4)
Director of Health may file this petition
when he is of the opinion that the person
is permanently or temporarily cured or
may be released without danger
RULE 102
HABEAS CORPUS
Habeas corpus extends to: (Sec.1)
1. cases of illegal confinement or
detention by which a person is deprived
of his liberty; and
2. cases by which the rightful custody of
the person is withheld from the person
entitled thereto
The restraint must be actual, effective
and material. The person need not
actually be confined as long as freedom of
action is limited. (Moncupa vs. Enrile, GR
No. 61107, Apr. 26, 1983)
Writ of Habeas Corpus - a command
directed to the person detaining another,
requiring him to produce the body of the
person detained at a designated time and
place, and to produce and to show cause
and to explain the reason for detention.


130
MEMORY AID
PURPOSE
The essential object and purpose of the
writ of habeas corpus is to inquire into all
manner of involuntary restraint as
distinguished from voluntary, and to
relieve a person therefrom if such
restraint is illegal. (Moncupa vs. Enrile,
supra)
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. (Villavicencio vs.
Lukban)
The privilege of writ is so sacred that,
according to our CONSTITUTION, it shall
not be suspended except in cases of
invasion or rebellion when public security
requires it (Art. III, Sec. 15).
IN CASES OF ILLEGAL CONFINEMENT OR
DETENTION
GENERAL RULE: The release, whether
permanent or temporary, of a detained
person renders the petition for habeas
corpus moot and academic.
EXCEPTION: When there are restraints
attached to his release which precludes
freedom of action, in which case the court
can still inquire into the nature of his
involuntary restraint. (Villavicencio vs.
Lukban)
Whether the State can reserve the
power to re-arrest a person for an
offense after a court of competent
jurisdiction has absolved him of the
offense.
We hold that such a reservation is
repugnant to the government of laws and
not of men principle. Under this principle,
the moment a person is acquitted on a
criminal charge he can no longer be
detained or re-arrested for the same
offense. (Moncupa vs. Enrile)
GROUNDS FOR RELIEF
IN
REMEDIAL LAW
1. deprivation of any fundamental or

constitutional right
2. lack of jurisdiction of the court to
impose the sentence
3. excessive penalty
Requisites for the issuance of the Writ in
cases by which the rightful custody of
the person of a minor is withheld from
the person entitled thereto
1. that the petitioner has the right to
the custody over the minor
2. that the rightful custody of the
minor is being withheld from the
petitioner by the respondent
3. that it is to the best interest of
the minor concerned to be in the
custody of the petitioner and not
that of respondent. (Sombong vs.
CA, January 31, 1996)
Habeas Corpus can never be a substitute
for appeal.
Whether the petition for the writ of
habeas corpus may be properly filed
together with the petition for certiorari
and mandamus
The Court ruled that the writs of habeas
corpus and certiorari may be ancilliary to
each other where necessary to give effect
to the supervisory powers of the higher
courts. A writ of habeas corpus reaches
the body and the jurisdictional matters,
but not the record. A writ of certiorari
reaches the record but not the body.
Hence, a writ of habeas corpus may be
used with the writ of certiorari for the
purpose of review.
However, habeas
corpus does not lie where the petitioner
has the remedy of appeal or certiorari
because it will not be permitted to
perform the functions of a writ of error or
appeal for the purpose of reviewing mere
errors or irregularities in the proceedings
of a court having jurisdiction over the
person and the subject matter. (Galvez, et
al. vs. CA, et al., 237 SCRA 685).


131
MEMORY AID
The person on bail is not entitled to
habeas corpus because his detention is
legal and technical.
Does voluntary restraint constitute
habeas corpus?
As a GENERAL RULE, NO. EXCEPT when a
person restrained is a minor and the
petitioner is the father or mother or
guardian or a person having custody of the
minor.
Voluntariness is viewed from the point of
view of the person entitled to custody.
Supervening Events May Bar Release
Even if the arrest of a person is illegal,
supervening events may bar release of
discharge from custody. What is to be
inquired into is the legality of detention as
of, at the earliest, the filing of the
application for the writ of habeas corpus.
(Velasco vs. CA, July 7,1995).
Preliminary Citation - issued by the court
to show cause whether or not the writ
should be issued
Who may grant the petition (Sec.2)
1. SC or any member thereon
2. CA or any member thereof
3. RTC or any judge thereof
4. MTC - in the absence of RTC judges
Procedure for grant of writ
a. verified petition signed by the
party for whose relief it is
intended; some other person in his
behalf;
b. allowance of writ;
c. command officer to produce;
d. service of writ by sheriff or other
officer;
e. return; and
f. hearing on return.
To whom writ directed and what to
require. (Sec.6)
Directed to officer and commands him to:
IN
REMEDIAL LAW
1. have the body of person before

the court; and
2. show cause of the imprisonment or
restraint.
How writ is executed and returned
(Sec.8)
Officer shall:
1. Convey the person so imprisoned
before the judge, unless from
sickness or infirmity, such person
cannot, without danger be brought
before the court.
2. Make the return of the writ
together with the day and the
cause of caption or restraint.
Defect of form (Sec.9)
NO writ can be disobeyed for defect in
form IF it sufficiently states:
1. person in whose custody or under
whose restraint
the party
imprisoned or restraint is held,
and
2. court or judge before whom he is
to be brought.
When the return evidence, and when
only a plea (Sec.3)
If a prisoner is in custody under a warrant
of commitment in pursuance of law or
under a judicial order, the return shall be
considered PRIMA FACIE EVIDENCE OF THE
CAUSE OF RESTRAINT, however it shall
only be plea of the facts set forth if
restraint is by private authority.
When prisoner discharged if no appeal.
(Sec.15)
If one is unlawfully imprisoned, court shall
order his discharge but such discharge
shall not be effective until a copy of the
order has been served on the office or
person detaining the prisoner. If person
detaining him does not appeal, the
prisoner shall be released.
When prisoner may be removed from
one custody to another (Sec.18)
1. By legal process


132
MEMORY AID
2. Prisoner is delivered to an inferior
officer to carry to jail
3. By order of proper court or judge
be removed from one place to
another within the Phil. for trial.
4. In case of fire, epidemic,
insurrection or other necessity or
public calamity.
When does court acquire jurisdiction
over person of respondent?
The writ itself plays the role as summon in
ordinary
actions;
court
acquires
jurisdiction over the person of the
respondent BY MERE SERVICE OF WRIT.
APPEAL IN HABEAS CORPUS CASES
The appeal in habeas corpus cases may be
taken in the name of the person detained
or of the officer or person detaining him.
An appeal in habeas corpus cases shall be
perfected by filing with the clerk of court
or the judge, within 48 hours from notice
of judgment, a notice of appeal.
RULE ON CUSTODY OF MINORS AND
WRIT OF HABEAS CORPUS
IN RELATION TO THE CUSTODY OF
MINORS (A.M. No. 03-04-04-SC)
Who may file Petition? (Sec.3)
- A verified petition for the rightful
custody of a minor may be filed by any
person claiming such right.
Where to file petition? (Sec.3)
- Family Court of the province or city
where the petitioner resides or where the
minor may be found.
Provisional Order Awarding Custody
(Sec.13)
As far as practicable, the following order
of preference shall be observed in the
award of custody:
a. Both parents jointly;
IN
REMEDIAL LAW
b. 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 unfit;
c. The grandparent or if there are
several grandparents, grandparent
chosen by the minor over seven
years of age and of sufficient
discernment,
unless
the
grandparent chosen is unfit or
disqualified;
d. The eldest brother or sister over
twenty years of age unless he or
she is unfit or disqualified;
e. The actual custodian of the minor
over twenty years of age, unless
the former is unfit or disqualified;
or
f. Any other person or institution the
court may deem suitable to
provide proper care and guidance
for the minor.
Temporary Visitation Rights (Sec.15)
The court shall provide in its order
awarding provisional custody appropriate
visitation rights to the non- custodial
parent or parents, unless the court finds
said parent or parents unfit or
disqualified.
Petition for Writ of Habeas Corpus (Sec.
20)
shall be filed with the Family
court.
shall be enforceable within its
judicial region to which the Family
Court belongs.
the petition may however be filed
with the regular court in the
absence of the presiding judge of
three Family Court, provided
however that the regular court
shall refer the case to the family
Court as soon as its presiding judge
returns duty.
petition may also be filed with the
SC, CA, or with any of its members


133
MEMORY AID
and, if so granted the writ shall be
enforceable anywhere in the
Philippines. The writ may be made
returnable to
a Family court or to any regular
court within the region where the
petitioner resides or where the
minor may be found for hearing
and decision on the merits.
RULE 103
CHANGE OF NAME
Venue (Sec. 1)
RTC of the province in which he resides.
Contents of Petition (Sec.2)
It shall set forth:
1. that petitioner is a bonafide
resident of the province where
petition is filed for at least three
years prior to the date of filing;
2. all names by which petitioner is
known;
3. cause for change of name;
4. name asked for.
Petition shall be signed and verified by
person desiring his name changed or some
other person in his behalf.
Requirement of verification is formal, NOT
jurisdictional requisite. It is not a ground
for dismissing petition.
Jurisdictional Requirements
1. the verified petition should be
published for three successive
weeks in some newspaper of
general
circulation
in
the
province;
2. that both the title and caption of
the petition and its body shall
recite:
a) name /names or aliases of the
applicant;
b) cause for which the change of
name is sought;
IN
REMEDIAL LAW
c) new name asked for. (Secan

Kok vs. Republic, 52 SCRA
322).
Hearing - shall not be within 30 days prior
to an election nor within 4 MONTHS after
the LAST PUBLICATION of notice of
hearing.
Effects of Discrepancy in the Petition and
Published Order
The 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.
Grounds for change of name
1. name is ridiculous, tainted with
dishonor and extremely difficult to
write or pronounce;
2. consequence of a change of status;
e.g. legitimated child;
3. necessity to avoid confusion;
4. having continuously used and been
known since childhood by a
Filipino name, unaware of her
alien parentage;
5. a sincere desire to adopt a Filipino
name to erase signs of former
alienage, all in good faith and
without prejudicing anybody.
TITLE OF PETITION MUST CONTAINED THE
FOLLOWNG
1. Official name (birth certificate)
be very particular with the spelling
because it may avoid or annul the
proceedings; it is jurisdictional;
2. all aliases; and
3. name asked for.
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 Kok vs.
Republic,supra).


134
MEMORY AID
A decree of adoption grants the adoptee
the right to use the adopters surname but
not to change the formers first name
which relief must be sought in a discrete
petition under Rule 103. (Republic vs.
Hernandez, GR NO. 117209, February 9,
1996).
For administrative procedure for Change
of Name, refer to Administrative Order 1,
Series of 2004. It only applies to:
1. clerical errors; and
2. innocuous errors.
RULE 107
ABSENTEES
ABSENTEE
CONSEQUENCE
0-2 years
--------
2 years to 7 years
Petition for
declaration of
absence may be filed
Considered dead for
all intents and
purposes except for
purposes of
succession
For purposes of
marriage: 4 years
continuous absence
shall be sufficient for
present spouse to
remarry, 2 years only
under extraordinary
circumstance
Beyond 7 years
(absence of 4 years
under extraordinary
circumstance)
PURPOSE OF PETITION - to appoint an

administrator over the properties
of the absentee. Hence, if
absentee left no properties, such
petition is unnecessary.
GROUNDS FOR TERMINATION OF THE
ADMINISTRATION
1. absentee
personally
appears
through an agent
IN
REMEDIAL LAW
2. absentee death is proven and heirs

appear
3. third person appears showing that
he acquired title over the property
of the absentee
4. Actual or presumptive death
cannot be the subject if it is the
onlt question or matter involved in
a case or upon which a competent
court has to pass. (Lukban vs.
Republic, GR No. 8492, February
29, 1956)
No independent action for Declaration of
Presumption of Death
Exception: the need for declaration of
presumptive death for purposes of
marriage (Article 41 of the Family Code).
RULE 108
CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY
Republic Act No. 9048 which was passed by
Congress on February 8, 2001 substantially
amended Article 412 of the New Civil
Code, to wit:
SECTION 1. Authority to Correct Clerical
or Typographical Error and Change of First
Name or Nickname.No entry in a civil
register shall be changed or corrected
without a judicial order, except for
clerical or typographical errors and change
of first name or nickname 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.
The above law speaks clearly. Clerical or
typographical errors in entries of the civil
register are now to be corrected and
changed without need of a judicial order
and by the city or municipal civil registrar
or consul general. The obvious effect is to
remove from the ambit of Rule 108 the
correction or changing of such errors in


135
MEMORY AID
entries of the civil register. Hence, what is
left for the scope of operation of Rule 108
are substantial changes and corrections in
entries of the civil register. (Lee vs. CA,
G.R. No. 118387, October 11, 2001).
Requisites of Adversarial proceedings
1. Proper petition is filed where the Civil
Registrar and all parties interested are
impleaded.
2. The order of the hearing must be
published once a week for three
consecutive weeks.
3. Notice thereof must be given to the
Civil Registrar and all parties affected
thereby.
4. The civil registrar and any person
having or claiming any interest under
the entry whose cancellation or
correction is sought may, within 15
days from notice of the petition or
from the last date of publication of
such notice, file his opposition
thereto.
5. Full blown trial.
Proceedings for the correction of entries
should not be considered as establishing
ones status in a manner conclusively
beyond dispute. The status corrected
would not have a superior quality for
evidentiary purposes. There is no increase
or diminution of substantive right. (Chiao
Ben Lim vs. Zosa, L- 40252, December 29,
1986)
PETITIONS FOR
CHANGE OF
NAME
PETITIONS FOR
THE CORRECTION,
CANCELLATION OF
ENTRIES
Petition to be filed
in the RTC where
the petitioner
resides
Solicitor General
must be notified by
service of a copy of
the petition.
Verified petition filed

in the RTC where the
corresponding Civil
registry is located
Civil registrar
concerned is made a
party to the
proceeding as a
respondent. The
Solicitor General
IN
REMEDIAL LAW
must also be notified

by service of a copy
of the petition.
Petition is filed by
Petition is filed by
person desiring to
any person interested
change his name
in any ACT, EVENT,
ORDER or DECREE
Order for hearing
Order shall also be
shall be published
published once for
once a week for
three consecutive
three consecutive
weeks and court shall
weeks
cause reasonable
notice to persons
named in petition
Service of judgment shall be upon the civil
register concerned
Petition for change of name (Rule 103)

and petition for cancellation or correction
of entries are DISTINCT PROCEEDINGS.
Hence, a party cannot change name and
correct an entry in a single petition
without satisfying the jurisdictional
requirements. (Republic v. Balmore)
RULE 109
APPEALS IN SPECIAL PROCEEDINGS
Orders or judgments from which appeals
may be taken (Sec.1)
An interested person may appeal in special
proceedings from such order or judgment
rendered which:
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 executor,
administrator, trustee or guardian;
5. Constitutes, in the proceedings
relating to the settlement of the
estate of a deceased person, or
the administration of a trustee or


136
MEMORY AID
IN
REMEDIAL LAW
guardian, a final determination in

the lower court of the rights of the
party appealing
appealing, except that no appeal
shall be allowed from the
appointment
of
a
special
administrator; and
6. Is the final order or judgment
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.
ORDERS THAT ARE NOT APPEALABLE
1. Order directing administrator to
take action to recover amount due
to the estate;
2. Order made in administration
proceedings relating to inclusion
or exclusion of items of property
in the inventory of executor or
administrator;
3. Order
appointing
special
administrator;
4. Order granting or denying a motion
for
new
trial
or
for
reconsideration.
APPEAL IN
ORDINARY CIVIL
ACTION
APPEAL IN SPECIAL
PROCEEDINGS
PERIOD:
15 days
30 days
REQUIREMENTS
Notice of Appeal and
Docket Fees
Record on Appeal and

Docket Fees
No extension
May be extended on
meritorious grounds


137
MEMORY AID
IN
REMEDIAL LAW
VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS
SPECIAL PROCEEDING
1.
Settlement of the Estate
VENUE
JURISDICTION
Resident of the Decedent or

if the decedent is a nonresident, place where he
had an estate
MTC if the gross value of the

estate does not exceed P200,000,
or P400,000 in Metro Manila
RTC if the gross value of the
estate exceeds the above amounts
2. Escheat
a. Person dies intestate

leaving no heir Resident of
the decedent or if nonresident, in the place where
he had an estate.
RTC
b. Reversion Where the

land lies in whole or in part
RTC
c. Unclaimed Balance
Where the dormant deposits
are located
RTC
Where the minor or

incompetent resides
Family Court (in case of Minors)

RTC (Regular courtsin cases
other than minors)
5.
Appointment of
Guardians
6.
Appointment of Trustees
7.
Adoption
Where the adopter resides
Family Court
8.
Rescission of Adoption
Where the adoptee resides
Family Court
9.
Habeas Corpus
Where the detainee is

detained (if the petition is
filed with the RTC)
SC, CA, RTC, MTC in the province

or city in case there is no RTC
judge
Where the will was allowed

or where the property or
portion thereof affected by
the trust is situated
RTC
Special

138
MEMORY AID
10. Change of Name
Where petitioner resides
RTC
11. Appointment of
Representative of
Absentee/Declaration of
Absence
Where the absentee resided

before his disappearance
RTC
12. Cancellation/Correction
of Entries in the Civil
Registries
Where the corresponding

Civil Registry is located
IN
REMEDIAL LAW
RTC
Special

Spec Proc

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Spec Proc

Uploaded by

Copyright:

Available Formats

San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

may involve only

DIFFERENT MODES OF SETTLEMENT OF

Probate of the Will if

SC and CA have original jurisdiction over

Distribution of Residue, if any

REMEDIAL LAW COMMITTEE

San Beda College of Law

Residence means his personal, actual or

EXAMPLES OF OTHER QUESTIONS WHICH

REMEDIAL LAW COMMITTEE

San Beda College of Law

In these exceptions an administrator or

The bond is required only when

REMEDIAL LAW COMMITTEE

San Beda College of Law

value of the estate

While the Rules provide that the decedent

REMEDIAL LAW COMMITTEE

San Beda College of Law

NATURE OF PROBATE PROCEEDINGS

REMEDIAL LAW COMMITTEE

San Beda College of Law

MEANING AND EXTENT DUE EXECUTION

REMEDIAL LAW COMMITTEE

San Beda College of Law

HOWEVER, in Codoy vs. Calugay,

REMEDIAL LAW COMMITTEE

San Beda College of Law

shall extend to all estates of the

REMEDIAL LAW COMMITTEE

San Beda College of Law

TO WHOM LETTERS OF ADMINISTRATION

apply for administration, ANY one

REMEDIAL LAW COMMITTEE

San Beda College of Law

The preference accorded by Sec. 6 of Rule

Publication for 3 Weeks and notice to

DURATION OF POWER OF SPECIAL

Letters can be granted to any person or

When does the power of a special

Is appointment of special administrator

REMEDIAL LAW COMMITTEE

San Beda College of Law

retains jurisdiction of the estate, the bond

deliver the same to person

The bond is effective as long as the court

REMEDIAL LAW COMMITTEE

San Beda College of Law

Grandchildren are NOT entitled to

REMEDIAL LAW COMMITTEE

San Beda College of Law

another, the property under

RULE: Within one year from the time of

When shall executor or administrator

When should the claims be filed?

REMEDIAL LAW COMMITTEE

San Beda College of Law

MONTHS nor less than 6 MONTHS after the

Contingent Claim conditional claim or

EXCEPTION: Belated Claims.

HOWEVER, a creditor barred by the