SPECIAL PROCEEDINGS

DEFINITION:
A special proceeding is a remedy by which a party seeks to establish a status, a
right or a particular fact. (Section (c), Rule 1)
The term special proceeding may be defined as an application or proceeding to
establish the status or right of a party, or a particular fact. Usually, in special proceedings,
no formal pleadings are required unless the statute expressly so provides and the remedy is
granted generally upon an application or motion. (Natcher vs. CA, G.R. No.
133000, October 2, 2001)
A special proceeding, by which a party seeks to establish a status, right, or a
particular fact, has one definite party, who petitions or applies for a declaration of a status,
right, or particular fact, but no definite adverse party. (Montaer vc CA, G.R. No. 174975,
January 20, 2009)
Are the enumerations under Sec. 1, Rule 72 exclusive?
The list under Section 1, Rule 72 is not exclusive. Any petition which has for its
main purpose the establishment of a status, right or a particular fact may be included as
special proceeding. (Festin, Special Proceedings, A Foresight to the Bar Exam:
Question and Answer Noted, Bar Questions, Cases and Updated Laws, 2011)
What are some of the cases which are considered special proceeding?
1.
2.
3.
4.
5.
6.
7.

Declaration of Nullity of Marriage;

Annulment of Marriage
Insolvency proceedings
Proceeding for the issuance of writ of amparo
Proceedings for the issuance of writ of habeas data
Alternative Dispute Resolution proceedings;
Presumptive death

Can a special proceeding be joined with ordinary civil actions?

No, by express provision of Sec. 5, Rule 2 which requires that the joinder of causes of
action must not involve special civil actions or actions governed by special rules, (which
includes special proceedings)
Specific rules on settlement prevail over general rules
We read with approval the CAs use of statutory construction principle of lex specialis
derogate generali, leading to the conclusion that the specific provisions of Section 5, Rule 86
of the Rules of Court should prevail over the general provisions of Section 11, Rule 6 of the
Rules of Court; the settlement of the estate of deceased persons (where claims against the
deceased should be filed) is primarily governed by the rules on special proceedings, while
the rules provided for ordinary claims, including Section 11, Rule 6 of the Rules of Court,
merely apply suppletorily. (Metropolitan Bank & Trust Company v. Absolute
Management Corporation, G.R. No. 170498. January 9, 2013)
4.1. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS
A special proceeding for the settlement of an estate is filed and intended to settle
the entire estate of the deceased is obvious and elementary ( Vda. De Reyes vs. CA, G.R.
No. L-47027 January 27, 1989).
Probate of the will takes precedence over intestate proceedings: Effect if probate
of the will is disapproved:
If in the course of intestate proceedings pending before a court of first instance it is
found it that the decedent had left a last will, proceedings for the probate of the latter
should replace the intestate proceedings even if at that stage an administrator had already
been appointed, the latter being required to render final account and turn over the estate in
his possession to the executor subsequently appointed but this is without prejudice to the

fact that should the alleged last will be rejected or is disapproved, the proceeding shall
continue as intestacy. (Uriarte vs CFI Of Negros, G.R. Nos. L-21938-39 May 29, 1970)
Insolvency proceedings and settlement are actions in rem:
Insolvency proceedings end settlement of a decedents estate is both proceedings in
rem which are binding the whole world. Consequently, a liquidation of similar import or other
equivalent general liquidation must also necessarily be a proceeding in rem so that all
interested persons whether known to the parties or not may be bound by such proceeding.
(Philippine Savings Bank vs Lantin, G.R. No. L-33929. September 2, 1983.)
4.1. 1. JURISDICTION OVER SETTLEMENT OF THE ESTATE.
The Regional Trial Court has jurisdiction over proceedings for the settlement of the
estate of a deceased person (probate proceedings) where the gross value of the estate
exceeds P300,000 and in Metro Manila where the gross value of the estate exceeds
P400,000. Where the gross value does not exceed P300,000 or P400,000 it would be
the Municipal Trial Court which would have jurisdiction. (BP 129 and RA 7691)
4.1. 2 VENUE IN JUDICIAL SETTLEMENT OF ESTATE
The matter of venue, or the particular Court of First Instance where the special
proceeding should be commenced, is regulated by former Rule 75, Section 1 of the Rules of
Court, now Section 1, Rule 73 of the Revised Rules of Court, which provides that the
estate of a decedent inhabitant of the Philippines at the time of his death, whether a citizen
or an alien, shall be in the court of first instance in the province in which he resided
at the time of his death, and if he is an inhabitant of a foreign country, the court
of first instance of any province in which he had estate. (Uriarte vs CFI Of Negros,
G.R. Nos. L-21938-39 May 29, 1970)
Place of residence of the deceased is for the determination of venue:
The place of residence of the deceased is not an element of jurisdiction over the
subject-matter but merely of venue. And it is upon this ground that in the new Rules of Court
the province where the estate of a deceased person shall be settled is properly called
"venue". (Cuenco vs CA, G.R. No. L-24742 October 26, 1973)
The place of residence of the deceased in settlement of estates, probate of will, and
issuance of letters of administration does not constitute an element of jurisdiction over the
subject matter. As it is merely constitutive of venue (Fule vs. CA, L-40502, November 29,
1976).
Venue in settlement of the estate waivable:
It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural
defect. Moreover, it must be remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the latter was not the proper
venue therefor, if the net result would be to have the same proceedings repeated in some
other court of similar jurisdiction; more so in a case like the present where the objection
against said proceedings is raised too late. (Uriarte vs CA, G.R. Nos. L-21938-39 May
29, 1970)
Exclusionary rule on venue in settlement of the estate:
Even assuming that there is concurrent venue among the Regional Trial Courts of the
places where the decedent has residences, the Regional Trial Court first taking cognizance of
the settlement of the estate of the decedent, shall exercise jurisdiction to the exclusion of all
other courts (Section 1, Rule 73). (Vda. De Chua vs CA. G.R. No. 116835 March 5,
1998)
4.1. 3. EXTENT OF JURISDICTION OF PROBATE COURT
Coverage on the extent of the power of the probate court: Issue of ownership not
included:
The probate jurisdiction of the former court of first instance or the present regional
trial court relates only to matters having to do with the settlement of the estate and probate

of wills of deceased persons, and the appointment and removal of administrators, executors,
guardians and trustees and does not extend the jurisdiction of a probate court to the
determination of questions of ownership that arise during the proceeding. The parties
concerned may choose to bring a separate action as a matter of convenience in the
preparation or presentation of evidence. (Ramos vs CA, G.R. No. 42108 December 29,
1989)
Jurisdiction of probate court to determine whether property belongs to conjugal
partnership or exclusive ownership of a party
In the case now before us, the matter in controversy is the question of ownership of
certain of the properties involved whether they belong to the conjugal partnership or to
the husband exclusively. This is a matter properly within the jurisdiction of the probate court
which necessarily has to liquidate the conjugal partnership in order to determine the estate
of the decedent which is to be distributed among his heirs who are all parties to the
proceedings. (Leo C. Romero and David Amando C. Romero vs. Hon. Court of
Appeals, Aurora C. Romero and Vittorio C. Romero, G.R. No. 188921, April 18,
2012)
Probate court has a special and limited jurisdiction:
It must be emphasized that the trial court, sitting, as a probate court, has limited
and special jurisdiction and cannot hear and dispose of collateral matters and issues which
may be properly threshed out only in an ordinary civil action. (Vda. De Manalo vs. CA,
G.R. No. 129242. January 16, 2001)
The authority of the Regional Trial Court, sitting, albeit with limited jurisdiction, as a
probate court over the estate of deceased individual, is not a trifling thing. The court's
jurisdiction, once invoked, and made effective, cannot be treated with indifference nor
should it be ignored with impunity by the very parties invoking its authority. (Romero vs
CA, G.R. No. 188921, April 18, 2012)
Issues that may be resolved by the probate court:
In testament to this, it has been held that it is within the jurisdiction of the probate
court to (1) approve the sale of properties of a deceased person by his prospective heirs
before final adjudication; (2) to determine who are the heirs of the decedent; (3) the
recognition of a natural child; (4) the status of a woman claiming to be the legal wife of the
decedent; the legality of disinheritance of an heir by the testator; and (5)to pass upon the
validity of a waiver of hereditary rights. (Romero vs CA, G.R. No. 188921, April 18,
2012)
Determination of heir an issue resolvable by probate court
While the foregoing allegations, if admitted to be true, would consequently warrant
the reliefs sought for in the said complaint, the rule that the determination of a decedents
lawful heirs should be made in the corresponding special proceeding precludes the RTC, in
an ordinary action for cancellation of title and reconveyance, from granting the same. In the
case of Heirs of Teofilo Gabatan v. CA, the Court, citing several other precedents, held that
the determination of who are the decedents lawful heirs must be made in the proper special
proceeding for such purpose, and not in an ordinary suit for recovery of ownership and/or
possession, as in this case:

Jurisprudence dictates that the determination of who are the legal heirs of the
deceased must be made in the proper special proceedings in court, and not in an
ordinary suit for recovery of ownership and possession of property. This must take
precedence over the action for recovery of possession and ownership. The Court has
consistently ruled that the trial court cannot make a declaration of heirship in the civil action
for the reason that such a declaration can only be made in a special proceeding. Under
Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as one by which
a party sues another for the enforcement or protection of a right, or the prevention or
redress of a wrong while a special proceeding is a remedy by which a party seeks to
establish a status, a right, or a particular fact. It is then decisively clear that the declaration
of heirship can be made only in a special proceeding inasmuch as the petitioners here are
seeking the establishment of a status or right. (Heirs of Magdaleno Ypon vs. Gaudioso

Ponteras Ricaforte a.k.a. Gaudioso E. Ypon, and The Register of Deeds of Toledo
City., G.R. No. 198680, July 8, 2013)

Nature of the determination of issue of ownership in probate not conclusive

merely provisional:
The probate court may pass upon the title thereto but such determination is not
conclusive and is subject to the final decision in a separate action regarding ownership
which may be instituted by the parties. (Reyes vs Mosqueda, G.R. No. L-45262 July 23,
1990)
The jurisprudence and rule are both to the effect that the probate court "may"
provisionally pass upon the question of exclusion, not "should". The obvious reason is the
probate court's limited jurisdiction and the principle that questions of title or ownership,
which result to inclusion in or exclusion from the inventory of the property, can only be
settled in a separate action. (Pio Baretto vs. Aa, G.R. No. L-62431-33 August 31,
1984)
It cannot but be conceded that the limited jurisdiction of a probate court prohibits it
from determining rights to property left by a decedent which depends on the contract
(Goodin v. Casselman 200 N.W. 94, 51 N.D. 543).
However, actions of the probate court, in the case at bar, do not refer to the
adjudication of rights under the contract entered into by the deceased during his lifetime. It
is to be noted that the dealings of the respondent with the court arose out of the latter's bid
to sell property under its authority to sell, mortgage or otherwise encumber property of the
estate to pay or settle against the estate (Rule 89, Revised Rules of Court).
"[A] probate court or one in charge of proceedings whether testate or intestate
cannot adjudicate or determine title to properties claimed to be a part of the estate and
which are claimed to belong to outside parties. All that the said court could do as regards
said properties is to determine whether they should or should not be included in the
inventory or list of properties to be administered by the administrator. "( De Leon vs. CA,
G.R. No. 128781, August 6, 2002)
Although generally, a probate court may not decide a question of title or ownership,
yet if the interested parties are all heirs, or the question is one of collation or advancement,
or the parties consent to the assumption of jurisdiction by the probate court and the rights
of third parties are not impaired, then the probate court is competent to decide the question
of ownership. (Romero vs CA, G.R. No. 188921, April 18, 2012)
4.1.4. POWERS AND DUTIES OF PROBATE COURT
In probate proceedings, the court:
a) Orders the probate of the will of the decedent (Sec. 3, Rule 77);
b) Grants letters of administration of the party best entitled thereto or to any qualified
applicant (Sec. 5, Rule 79);
c) Supervises and control all acts of administration;
d) Hears and approves claims against the estate of the deceased (Sec. 11, Rule 86);
e) Orders payment of lawful debts (Sec. 11, Rule 88);
f) Authorizes sale, mortgage or any encumbrance of real estate (Sec. 2, Rule 89);
g) Directs the delivery of the estate to those entitled thereto (Sec. 1, Rule 90);
h) Issue warrants and processes necessary to compel the attendance of witnesses or
to carry into effect their orders and judgments, and all other powers granted them by law
(Sec. 3, Rule 73);
i) If a person defies a probate order, it may issue a warrant for the apprehension and
imprisonment of such person until he performs such order or judgment, or is released (Sec.
3, Rule 73).
Power of supervision and control of the probate court:

"The court which acquires jurisdiction over the properties of a deceased person
through the filing of the corresponding proceedings, has supervision and control over
the said properties, and under the said power, it is its inherent duty to see that the
inventory submitted by the administrator appointed by it contains all the properties, rights
and credits which the law requires the administrator to set out in his inventory. In
compliance with this duty the court has also inherent power to determine what properties,
rights and credits of the deceased should be included in or excluded from the inventory. (De
Leon vs CA, G.R. No. 128781, August 6, 2002)
The court acts as trustee and as such, should jealously guard the estate and see to it
that it is wisely and economically administered, not dissipated (Timbol vs. Cano, 111 Phil.
923, G.R. No. L-15445, April 29, 1961).
Should an heir or person interested in the properties of a deceased person duly call
the courts attention to the fact that certain properties, rights or credits have been left out in
the inventory, it is likewise the courts duty to hear the observations, with power to
determine if such observations should be attended to or not and if the properties referred to
therein belong prima facie to the intestate, but no such determination is final and ultimate in
nature as to the ownership of the said properties. (De Leon vs CA, G.R. No. 128781,
August 6, 2002)
4.2. SUMMARY SETTLEMENT OF ESTATES
General rule:
When a person dies leaving property, the same should be JUDICIALLY ADMINISTERED and the
competent court should appoint a qualified administrator, in the order established in Section
6, Rule 78, in case the deceased left no will, or in case he had left one, should he fail to
name an executor therein. (Pereira vs CA, G.R. No. L-81147 June 20, 1989)
Exceptions:
1. Extrajudicial settlement (Section 1, Rule 74)
2. Summary settlement of estates of small value (Section 2, Rule 74)
4.2.1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN
ALLOWED
As a general rule, when a person dies living property in the Philippine Islands, his
property should be judicially administered and the competent court should appoint a
qualified administrator, or in case the deceased left no will, or in case he had left one should
he fail to name an executor therein. This rule, however, is subject to the exceptions, such as
when the heirs are all of lawful age and there are no debts there is no reason why the estate
should be burdened with the cost and expenses of an administrator. (Pereira vs CA, G.R.
No. L-81147 June 20, 1989 citing Utulo vs. Pasion vda. De Garcia, 66 Phil. 303,
G.R. No. 45904, September 30, 1938)
This court repeatedly held that when a person dies without leaving pending
obligations to be paid, his heirs, whether of age or not, are not bound to submit the property
to a judicial administration and the appointment of an administrator are superfluous and
unnecessary proceedings (Fule vs CA, G.R. No. L-40502 November 29, 1976)
If the intention were otherwise the framer of the rule would have employed the
word shall as was done in other provisions that are mandatory in character. Note that the
word may is used not only once but in the whole section which indicates an intention to
leave the matter entirely to the discretion of the heirs. (Arcilla vs Montejo, G.R. No. L21725, November 29, 1968)
It should be noted that recourse to an administration proceeding even if the estate
has no debts is sanctioned only if the heirs have good reasons for not resorting to an action
for partition. Where partition is possible, either in or out of court, the estate should not be
burdened with an administration proceeding without good and compelling reasons.
(Pereira vs CA, G.R. No. L-81147 June 20, 1989)
Effect of Exclusion of Heirs-Agreement null and void

Hence, in the execution of the Extra-Judicial Settlement of the Estate with Absolute
Deed of Sale in favor of spouses Uy, all the heirs of Anunciacion should have participated.
Considering that Eutropia and Victoria were admittedly excluded and that then minors Rosa
and Douglas were not properly represented therein, the settlement was not valid and
binding upon them and consequently, a total nullity.
Section 1, Rule 74 of the Rules of Court provides:
SECTION 1. Extrajudicial settlement by agreement between heirs. x x x no
extrajudicial settlement
shall be binding upon any person who has not participated
therein
or had no notice thereof. x x x
(emphasis supplied). (Neri, at al. vs.
Heirs of Hadji Yusop Uy and Julpha Ibrahim Uy., G.R. No. 194366,
October
10,
2012)
4.2.2. TWO-YEAR PRESCRIPTIVE PERIOD
Extrajudicial settlement is an ex-parte proceeding:
The procedure outlined in Section 1 of Rule 74 of extrajudicial settlement, or by
affidavit, is an ex parte proceeding. It cannot by any reason or logic be contended that such
settlement or distribution would affect third persons who had no knowledge either of the
death of the decedent or of the extrajudicial settlement or affidavit, especially as no mention
of such effect is made, either directly or by implication. (Sampilo vs CA, G.R. No. L10474, February 28, 1958)
Two (2) year prescriptive period applies only persons who knew or participated in
the extrajudicial settlement:
The provisions of Section 4 of Rule 74, barring distributees or heirs from objecting to
an extrajudicial partition after the expiration of two years from such extrajudicial partition, is
applicable only to persons who have participated or taken part or had notice of the
extrajudicial partition, and, in addition, when the provisions of Section 1 of Rule 74 have
been strictly complied with. There is nothing therein, or in its source which shows clearly a
statute of limitations and a bar of action against third persons. (Sampilo vs CA, G.R. No.
L-10474, February 28, 1958)
4.2.3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR
If there is only one heir, he may adjudicate to himself the entire estate by means of
an affidavit filed in the office of the register of deeds. The parties to an extrajudicial
settlement, whether by public instrument or by stipulation in a pending action for partition,
or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall
file, simultaneously with and as a condition precedent to the filing of the public instrument,
or stipulation in the action for partition, or of the affidavit in the office of the register of
deeds, a bond with the said register of deeds, in an amount equivalent to the value of the
personal property involved as certified to under oath by the parties concerned and
conditioned upon the payment of any just claim that may be filed under Section 4 of this
rule. It shall be presumed that the decedent left no debts if no creditor files a petition for
letters of administration within two (2) years after the death of the decedent. (Sec.1, Rule
74)
4.2.4. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE, WHEN ALLOWED
Factors to consider in the summary settlement of the estate of small value:
a) WE uniformly held that for the court to acquire jurisdiction in a petition for
summary settlement of estate under the rules, the requirement that the amount of the
estate involved should not exceed P10,000,00 (P6,000.00 under the old rules) is
jurisdictional. (Del Rosario v. Cunanan, L-37903, March 30, 1977);
b) Decedent died testate or intestate;
c) Petition filed by an interested person;
d) Notice published at least once a week for 3 consecutive weeks in a newspaper of
general circulation;
e) Hearing of petition held not less than 1 month nor more than 3 months from the
date of the LAST publication of notice;
f) Payment of such debts of the estate as the court shall find to be due;

g) The order of partition or award, if it involves real estate, recorded in the register of
deeds; and
h) Bond filed with the register of deeds in an amount to be fixed by the court.
Bond not required in case when only real property is involved:
No bond is necessary when only real estate is involved because the lien as recorded
is sufficient security for any claim which may be filed under Sec 4, that is, when an heir or
other person has been unduly deprived of his lawful participation in the estate.
4.2.5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRAJUDICIAL SETTLEMENT OF
ESTATE
Binding effects of extra-judicial settlement:
An extrajudicial settlement despite the publication shall not be binding on any person
who has not participated therein or who had no notice of death of the decedent. this is
because the procedure in section 1, rule 74 is an ex parte proceeding (Sampilo vs CA,
G.R. No. L-10474, February 28, 1958)
A SUMMARY SETTLEMENT is likewise NOT BINDING upon heirs or creditors who were
not parties therein or had no knowledge thereof.
REMEDIES OF AN EXCLUDED CREDITOR:
1. Proceed Against the Bond (Section 4, Rule 74)
a) The unpaid creditor MAY PROCEED against the bond by filing, WITHIN 2 YEARS, a
motion for the payment of his credit in the court wherein such summary settlement was had.
b) AFTER the lapse of the 2 year period, the creditor may NO LONGER proceed
against the bond, BUT can institute an ordinary action against the distributees within the
statute of limitations.
2. Petition for Letters of Administration
3. Action to annul a deed of extrajudicial settlement on the ground of fraud
should be filed within four years from the discovery of fraud. (Regalado, 2008)
4. Proceed Against the Real Property
a) The lien subsists for 2 years.
b) 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)
5) Ordinary Civil Action
REMEDIES OF AN EXCLUDED HEIR:
1) Action to compel settlement of estate(Section 4, Rule 74)
2) Action for rescission on the ground of lesion (Art. 1381, par. 1, NCC) Prescriptive
period is 4 years
3) Accion Reivindicatoria
4)10 years, Implied Trust. Annulment on the ground of fraud
When does the prescriptive period of four (4) years begin to run?
Prescriptive period is 4 years. The period of four (4) years therein prescribed did not
begin to run until actual discovery of the fraud perpetrated by respondents, which, it
is claimed, took place in 1956 or 1957; and that accordingly, said period had not expired
when the present action was commenced on November 4, 1958. (Gerona vs. De Guzman,
Gr L-19060, 1964)
PERIOD FOR CLAIM OF MINOR OR INCAPACITATED PERSON

If on the date of the expiration of the period of two (2) years prescribed in the
preceding section the person authorized to file a claim is a minor or mentally incapacitated,
or is in prison or outside the Philippines, he may present his claim within one (1) year after
such disability is removed. (Section 5, Rule 75)
4.3. PRODUCTION AND PROBATE OF WILL
What is probate of the will?
A judicial act whereby an instrument is adjudged valid and is ordered to be recorded.
It is the statutory method of establishing the proper execution of the instrument and giving
notice of its contents. The probate of a will by the court having jurisdiction thereof is
considered as conclusive as to its due execution and testamentary capacity of the testator
(Mercado
vs.
Santos,
No.
45629,
22
September
1938).
4.3.1. NATURE OF PROBATE PROCEEDING:
The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98
Phil. 249; Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA 86).
Consolidation of the intestate proceedings with testate proceedings:
It is anomalous that the estate of a person who died testate should be settled in an
intestate proceeding. Therefore, the intestate case should be consolidated with the testate
proceeding and the judge assigned to the testate proceeding should continue hearing the
two cases. (Roberts vs. Leonidas, G.R. No. L-55509 April 27, 1984)
Reason why the will should be probated:
The law enjoins the probate of the Will and public policy requires it, because unless
the Will is probated and notice thereof given to the whole world, the right of a person to
dispose of his property by Will may be rendered nugatory. (Maninang vs. CA, G.R. No. L57848 June 19, 1982)
Exceptions:
a) The heirs divide the estate according to the will; pay the creditors accordingly so
that none of them may be prejudiced. By permitting partition and division of estate without
judicial proceedings would enable the heirs to take over their respective shares in the
inheritance without delay and thereby avoid expenses and waste (McMicking v. Sy
Combieng, 21 Phil. 219)
b) No will shall pass either real or personal property unless it is proved or allowed in
court. We find, that the document may be sustained on the basis of Article 1056 which reads
as follows: Art. 1056. If the testator should make a partition of his properties by an act inter
vivos, or by win, such partition shall stand in so far as it does not prejudice the legitime of
the forced heirs . (Mang-Oy vs CA, G.R. No. L-27421 September 12, 1986)
Issues that may be resolved in probate proceedings:
As a general rule, courts in probate proceedings are limited only to passing upon the
extrinsic validity of the will sought to be probated, the due execution thereof, the testator's
testamentary capacity and the compliance with the requisites or solemnities prescribes by
law. The question of the intrinsic validity of a will normally comes only after the court has
declared that the will has been duly authenticated. (Nufable vs Nufable, G.R. No.
126950 July 2, 1999)
In a special proceeding for the probate of a will, the issue by and large is restricted to
the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely
executed the will in accordance with the formalities prescribed by law. (Rules of Court,
Rule 75, Section 1; Rule 76, Section 9.)
Probate court cannot pass upon issue of ownership: Exceptions:
As a rule, the question of ownership is an extraneous matter which the Probate Court
cannot resolve with finality. Thus, for the purpose of determining whether a certain property
should or should not be included in the inventory of estate properties, the Probate Court

may pass upon the title thereto, but such determination is provisional, not conclusive, and is
subject to the final decision in a separate action to resolve title. (Pastor Jr. vs. CA, G.R.
No. L-56340 June 24, 1983)
EXCEPTION WHEN PROBATE COURT MAY PASS UPON INTRINSIC VALIDITY:
1) Null and void will:
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the
petitioner as universal heir and completely preterited her surviving forced heirs. A will of this
nature, no matter how valid it may appear extrinsically, would be null and void and separate
or latter proceedings to determine the intrinsic validity of the testamentary provisions would
be superfluous. (Nepomuceno vs CA, G.R. No. L-62952 October 9, 1985)
2) Grave abuse of discretion by the probate court: Remedy of certiorari available:
An act done by a Probate Court in excess of its jurisdiction may be corrected
by Certiorari. And even assuming the existence of the remedy of appeal, we harken to the
rule that in the broader interests of justice, a petition for certiorari may be entertained,
particularly where appeal would not afford speedy and adequate relief. (Maninang vs CA,
G.R. No. L-57848 June 19, 1982)
Doctrine of estoppels not applicable in probate proceedings:
Doctrine of estoppel is not applicable in probate proceedings as the presentation and
probate of a will are requirements of public policy, being primarily designed to protect the
testator's, expressed wishes, which are entitled to respect as a consequence of the
decedent's ownership and right of disposition within legal limits. It would be a non
sequitur to allow public policy to be evaded on the pretext of estoppel. (Fernandez, Et Al.
vs. Dimagiba, L-23638, October 12, 1967)
4.3.2. WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED TO NOTICE
The following may petition for the allowance of a will:
a) Testator himself during his lifetime
b) Heir (person interested in the estate)
c) Executor
d) Creditor
e) Devisee or legatee
Person who will intervene in probate proceedings must have an interest:
It is a well-settled rule that in order that a person may be allowed to intervene in a
probate proceeding he must have an interest in the estate, or in the will, or in the property
to be affected by it either as executor or as a claimant of the estate (Ngo The Hua vs.
Chung Kiat Hua, Et Al., L-17091, September 30, 1963);
Who is an interested party?
An INTERESTED PARTY is one who would be benefited by the estate such as an heir or
one who has a claim against the estate such as a creditor. (Sumilang vs. Ramagosa, 21
SCRA 1398, G.R. No. L-23135
December 26, 1967)
4.4. ALLOWANCE OR DISALLOWANCE OF WILL
4.4. 1. Contents of petition for allowance of will
a) Rule 76, section 2 requires that the petition for allowance of a will must show: "(a)
the jurisdictional facts." Such "jurisdictional facts" in probate proceedings, as held by the
Court in Fernando vs. Crisostomo " are the death of the decedent, his residence at the time
of his death in the province where the probate court is sitting, or if he is an inhabitant of a
foreign country, his having left his estate in such province." (Cuenco vs CA, G.R. No. L24742 October 26, 1973)
b) Names, ages and residences of heirs, legatees, and devisees;

c) Probable value and character of the property of the estate;

d) Name of person for whom letters are prayed;
e) Name of person having custody of will, if it has not yet been delivered to the court.
(In The Matter Of The Petition To Approve The Will Of Ruperta Palaganas vs.
Ernesto Palaganas, G.R. No. 169144, January 26, 2011)
4.4. 2. GROUNDS FOR DISALLOWING A WILL:
What are the grounds for the disallowance of a will? Nature? Issues to be resolved
in the probate of a holographic will:
a) The will was not executed and attested as required by law;
b) The testator was insane or otherwise mentally incapable of making a will at the time
of its execution;
c) The will was executed through force or under duress or the influence of fear, or
threats;
d) The will was procured by undue and improper pressure and influence, on the part of
the beneficiary or of some other person for his benefit;
e) The signature of the testator was procured by fraud or trick;
f) The testator acted by mistake or did not intend that the instrument he signed should
be his will at the time of affixing his signature thereto. (Section 9, Rule 76 of Rules of court
and Art 839, New Civil Code)
These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a
petition to admit a holographic will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the decedent's last will and testament; (2)
whether said will was executed in accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its signing were the voluntary acts
of the decedent. (Ajero vs. CA, G.R. No. 106720 September 15, 1994)
4.4. 3. REPROBATE OF THE WILL:
Duty of the court in reprobate of the will:
Reprobate is specifically governed by Rule 77 of the Rules of Court. In reprobate,
the local court acknowledges as binding the findings of the foreign probate court provided its
jurisdiction over the matter can be established. (In The Matter Of The Petition To
Approve The Will Of Ruperta Palaganas vs. Ernesto Palaganas, G.R. No. 169144,
January 26, 2011)
a) Requisites before a will proved abroad will be allowed in the Philippines
Article 816 of the Civil Code of the Philippines provides thus:
Art. 816. The will of an alien who is abroad produces effect in the Philippines if made
with the formalities prescribed by the law of the place in which he resides, or according to
the formalities observed in his country, or in conformity with those which this Code
prescribes. (Art. 816 of the Civil Code)
Matters to be proved in reprobate of the will:
The evidence necessary for the reprobate or allowance of wills which have been
probated outside of the Philippines are as follows: (1) the due execution of the will in
accordance with the foreign laws; (2) the testator has his domicile in the foreign country and
not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact
that the foreign tribunal is a probate court, and (5) the laws of a foreign country on
procedure and allowance of wills . (De Perez vs. Tolete, G.R. No. 76714 June 2, 1994)
Duty of proving foreign laws in reprobate of the will: Reason:
The necessity of presenting evidence on the foreign laws upon which the probate in
the foreign country is based is impelled by the fact that our courts cannot take judicial notice
of them (Philippine Commercial and Industrial Bank vs. Escolin, 56 Scra 266 G.R.
Nos. L-27860 and L-27896 March 29, 1974).

10

Duty of the court in case a will is presented for reprobate:

The rule that the court having jurisdiction over the reprobate of a will shall "cause
notice thereof to be given as in case of an original will presented for allowance" (Revised
Rules of Court, Rule 27, Section 2) means that with regard to notices, the will probated
abroad should be treated as if it were an "original will" or a will that is presented for probate
for the first time. (De Perez vs. Tolete, G.R. No. 76714 June 2, 1994)
Where to make the administration of property?
When a person dies intestate owning property in the country of his domicile as well
as in a foreign country, administration is had in both countries. (B.E. Johannes vs. Harvey,
G.R. No. 18600, March 9, 1922)
Principal/domiciliary administration vs. Ancillary administration:
That which is granted in the jurisdiction of decedent's last domicile is termed the
principal/ domiciliary administration, while any other administration is termed the
ancillary administration. The ancillary administration is proper, whenever a person dies,
leaving in a country other than that of his last domicile, property to be administered in the
nature of assets of the deceased liable for his individual debts or to be distributed among his
heirs." (Testate Estate of Idonah Perkins vs Benguet Consolidated, G.R. No. L23145, November 29, 1968)
4.4.4. EFFECTS OF PROBATE:
a) The will shall be treated as if originally proved and allowed in Philippine courts;
(De Perez vs. Tolete, G.R. No. 76714 June 2, 1994)
b) Letters testamentary or administration with a will annexed shall extend to all
estates of the Philippines;
c) After payment of just debts and expenses of administration, the residue of the
estate shall be disposed of as provided by law in cases of estates in the Philippines
belonging to persons who are inhabitants of another state or country (Section 4, Rule 77).
4.5. LETTERS TESTAMENTARY AND OF ADMINISTRATION
4.5. 1. WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED
The following may administer the estate of a deceased:
1. Executor
2. Administrator
WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR ADMINISTRATORS
No person is competent to serve as executor or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of
i.)drunkenness,
ii.) improvidence, or
Iii.)want of understanding or integrity, or
iv.) by reason of conviction of an offense involving moral turpitude. (Section 1,
Rule 78)
v.) Antagonistic Interest. "(I)n this jurisdiction, one is considered to be
unsuitable for appointment as administrator when he has adverse interest of some kind of
hostility to those immediately interested in the estate.". (Medina vs. CA, G.R. No. L34760, September 28, 1973)

11

Determination of executor or administrator discretionary upon the court:

The Rules of Court gives the lower court the duty and discretion to determine
whether in its opinion an individual is unfit to serve as an executor. The sufficiency of any
ground for removal should thus be determined by the said court, whose sensibilities are, in
the first place, affected by any act or omission on the part of the administrator not
conformable to or in disregard of the rules of orders of the court. (Matute vs. Court Of
Appeals, No. L- 26751, January 31, 1969, 26 SCRA 768, 784)
Choice of executor prerogative of the testator:
The choice of his executor is a precious prerogative of a testator, a
necessary concomitant of his right to dispose of his property in the manner he
wishes. The curtailment of this right may be considered as a curtailment of the right to
dispose and as the rights granted by will take effect from the time of death, the
management of his estate by the administrator of his choice should be made as soon as
practicable, when no reasonable objection to his assumption of the trust can be interposed
any longer. (RP vs. Marcos Ii, G.R. Nos. 130371 &130855, August 4, 2009)
4.5. 2. ORDER OF PREFERENCE
Order of preference in the appointment of a regular administrator:
Section 6, Rule 78 of the Rules of Court lists the order of preference in the
appointment of an administrator of an estate:
SEC. 6. When and to whom letters of administration granted. If no
executor is named in the will, or the executor or executors are incompetent, refuse
the trust, or fail to give bond, or a person dies intestate, administration shall be
granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or
both, in the discretion of the court, or to such person as such surviving husband or
wife, or next of kin, requests to have appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or the
person selected by them, be incompetent or unwilling, or if the husband or widow, or
next of kin, neglects for thirty (30) days after the death of the person to apply for
administration or to request that administration be granted to some other person, it
may be granted to one or more of the principal creditors, if competent and willing to
serve;
(c) If there is no such creditor competent and willing to serve, it may be
granted to such other person as the court may select.
However, the order of preference is not absolute for it depends on the attendant
facts and circumstances of each case and it has been long held that the selection of an
administrator lies in the sound discretion of the trial court. (In The Matter Of The
Intestate Estate Of Cristina Aguinaldo- Suntay; Emilio A.M. Suntay III vs.
Cojuangco-Suntay, G.R. No. 183053, June 16, 2010)
Factor to consider in the appointment of administrator:
The paramount consideration in the appointment of an administrator over the estate
of a decedent is the prospective administrators interest in the estate. This is the
same consideration which Section 6, Rule 78 takes into account in establishing the order of
preference in the appointment of administrator for the estate. The rationale behind the rule
is that those who will reap the benefit of a wise, speedy and economical administration of
the estate, or, in the alternative, suffer the consequences of waste, improvidence or
mismanagement, have the highest interest and most influential motive to administer the
estate correctly. In all, given that the rule speaks of an order of preference, the person to be
appointed administrator of a decedents estate must demonstrate not only an interest in the
estate, but an interest therein greater than any other candidate. (Emilio A.M. Suntay III
vs. Isabel Cojuangco-Suntay., G.R. No. 183053, October 10, 2012)

12

In the appointment of the administrator of the estate of a deceased person, the

principal consideration reckoned with is the interest in said estate of the one to be appointed
as administrator. The underlying assumption behind this rule is that those who will
reap the benefit of a wise, speedy, economical administration of the estate, or, on
the other hand, suffer the consequences of waste, improvidence or
mismanagement, have the highest interest and most influential motive to
administer the estate correctly. (Gonzales vs. Aguinaldo, G.R. No. 74769
September 28, 1990)
When can the court appoint an administrator if the executor is disqualified,
refused to assume the trust, etc.?
The rule is that if no executor is named in the will, or the named executor or
executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate,
the court must appoint an administrator of the estate of the deceased who shall act as
representative not only of the court appointing him but also of the heirs and the creditors of
the estate. In the exercise of its discretion, the probate court may appoint one, two or more
co-administrators to have the benefit of their judgment and perhaps at all times to have
different interests represented. (Gonzales vs. Aguinaldo, G.R. No. 74769 September
28, 1990)
Appointment of co-administrators:
Where the estate is large, to appoint two or more administrators of such estate to
have different interests represented and satisfied, and furthermore, to have such
representatives work in harmony for the best interests of such estate. (Matute vs. CA,
G.R. No. 26751, January 31, 1969)
Appointment of co-administrator is allowed but as an exception
It is to this requirement of observation of the order of preference in the appointment
of administrator of a decedents estate, that the appointment of co-administrators has been
allowed, but as an exception. We again refer to Section 6(a) of Rule 78 of the Rules of Court
which specifically states that letters of administration may be issued to both the surviving
spouse and the next of kin. In addition and impliedly, we can refer to Section 2 of Rule 82 of
the Rules of Court which say that x x x [w]hen an executor or administrator dies, resigns, or
is removed, the remaining executor or administrator may administer the trust alone, x x x.
In a number of cases, we have sanctioned the appointment of more than one
administrator for the benefit of the estate and those interested therein. We recognized that
the appointment of administrator of the estate of a decedent or the determination of a
persons suitability for the office of judicial administrator rests, to a great extent, in the
sound judgment of the court exercising the power of appointment.
Under certain circumstances and for various reasons well-settled in Philippine and
American jurisprudence, we have upheld the appointment of co-administrators: (1) to have
the benefits of their judgment and perhaps at all times to have different interests
represented; (2) where justice and equity demand that opposing parties or factions be
represented in the management of the estate of the deceased; (3) where the estate is large
or, from any cause, an intricate and perplexing one to settle;(4) to have all interested
persons satisfied and the representatives to work in harmony for the best interests of the
estate; and when a person entitled to the administration of an estate desires to have
another competent person associated with him in the office. (Emilio A.M. Suntay III vs.
Isabel Cojuangco-Suntay., G.R. No. 183053, October 10, 2012)
4.5. 3. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS
FILING OF PETITION FOR ADMINISTRATION
Who may oppose the petition for issuance of letter administration?
Only an interested person may oppose the petition for issuance of letters of
administration. An interested person is one who would be benefited by the estate such as an
heir, or one who has a claim against the estate, such as a creditor; his interest is material
and direct, and not one that is only indirect or contingent. (Vda. De Chua vs. CA. G.R. No.
116835 March 5, 1998)
Who is an interested party?

13

An interested party has been defined in this connection as one who would be
benefited by the estate, such as an heir, or one who has a claim against the estate, such as
a creditor (Intestate Estate of Julio Magbanwa 40 Off. Gaz. 1171).
Nature of the interest?
The interest required in order that a person may be a party thereto must be
material and direct, and not merely indirect or contingent. In the case at bar,
Petitioners interest in the estate of the deceased Maria V. Lindayag was disputed, through a
motion to dismiss her petition, by the surviving spouse on the ground that said deceased
was survived by him and by three legally adopted children thus excluding petitioner who
was the deceaseds sister, as an heir. (Saguinsin vs. Lindayag, G.R. No. L-17759.
December 17, 1962 )
Lack of interest is a ground for the dismissal of the action on the ground of lack
legal capacity to sue:
Of course, since the opening sentence of the section requires that the petition must
be filed by an interested person, it goes without saying that a motion to dismiss may lie not
on the basis of lack of jurisdiction on the part of the court, but rather on the ground of lack
of legal capacity to institute the proceedings. (Pilipinas Shell vs. Dumlao, G.R. No.
44888. February 7, 1992)
4.5. 4. POWERS AND DUTIES
RESTRICTIONS ON THE POWERS:

OF

EXECUTORS

AND

ADMINISTRATORS;

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) payment of debts; and
b) 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.
Duty to account by the executor or administrator mandatory:
The duty of an executor or administrator to render an account is not a mere incident
of an administration proceeding which can be waived or disregarded as it is a duty that has
to be performed and duly acted upon by the court before the administration is finally
ordered closed and terminated, to the end that no part of the decedent's estate be left
unaccounted for. The fact that the final accounts had been approved does not divest the
court of jurisdiction to require supplemental accounting. (Vda. De Chua vs. CA. G.R. No.
116835 March 5, 1998)
Purpose of the bond by the administrator:
Pursuant to Section 1 of Rule 81, the bond secures the performance of the duties
and obligations of an administrator namely:
(1) to administer the estate and pay the debts;
(2) to perform all judicial orders;
(3) to account within one (1) year and at any other time when required by the
probate court; and
(4) to make an inventory within three (3) months.
More specifically, per Section 4 of the same Rule, the bond is conditioned on the
faithful execution of the administration of the decedents estate requiring the special
administrator to:

14

(1) make and return a true inventory of the goods, chattels, rights, credits, and estate
of the deceased which come to his possession or knowledge;
(2) truly account for such as received by him when required by the court; and
(3) deliver the same to the person appointed as executor or regular administrator, or
to such other person as may be authorized to receive them.
Verily, the administration bond is for the benefit of the creditors and the heirs, as it
compels the administrator, whether regular or special, to perform the trust reposed in, and
discharge the obligations incumbent upon, him, therefore, it should not be considered as
part of the necessary expenses chargeable against the estate, not being included among the
acts constituting the care, management, and settlement of the estate. (Ocampo vs.
Ocampo, G.R. No. 187879, July 5, 2010)
4.5. 5. APPOINTMENT OF SPECIAL ADMINISTRATOR:
Order of preference in the appointment of regular administrator may be
considered in the appointment of a special administrator:
Nothing is wrong for the judge to consider the order of preference in the appointment
of a regular administrator in appointing a special administrator. After all, the consideration
that overrides all others in this respect is the beneficial interest of the appointee in the
estate of the decedent (Fule vs. CA, G.R. No. L-40502 November 29, 1976)
Principal object of the appointment of a special administrator:
The principal object of the appointment of a temporary administrator is to preserve
the estate until it can pass to the hands of a person fully authorized to administer it for the
benefit of creditors and heirs, pursuant to Section 2 of Rule 80 of the Rules of Court.
(Ocampo vs. Ocampo, G.R. No. 187879, July 5, 2010)
Nature of the duty of the special administrators:
The Special Administrators that while they may have respective interests to protect,
they are officers of the Court subject to the supervision and control of the Probate Court and
are expected to work for the best interests of the entire estate, its smooth administration,
and its earliest settlement. (Corona vs. CA, G.R. No. L-59821 August 30, 1982)
When can a special administrator be appointed?
The specific and limited powers of special administrators and that their appointment
merely temporary and subsists only until a regular administrator is duly appointed (since
Rule 80, section 1 provides for the appointment of a special administrator as a caretaker
only "when there is delay in granting letters testamentary or of administration by
any cause") (Medina vs. Beda Gonzales, G.R. No. L-34760 September 28, 1973)
Appointment of a special administrator discretionary:
The discretion to appoint a special administrator or not lies in the probate court but
that is no authority for the judge to become partial, or to make his personal likes and dislikes
prevail over, or his passions to rule, his judgment but such discretion must be based on
reason, equity, justice and legal principle. There is no reason why the same fundamental and
legal principles governing the choice of a regular administrator should not be taken into
account in the appointment of a special administrator. (Fule vs. CA, G.R. No. L-40502
November 29, 1976)
Choice of the executrix of special administrator deserves highest consideration:
The executrix's choice of Special Administrator, considering her own inability to serve
and the wide latitude of discretion given her by the testatrix in her Will (Annex "A-1"), is
entitled to the highest consideration.. (Corona vs CA, G.R. No. L-59821 August 30,
1982)
4.5. 6. GROUNDS FOR REMOVAL OF ADMINISTRATOR:
1.) neglects to render his account and settle the estate according to law, or
2) neglects to perform an order or judgment of the court, or

15

3.) neglect to perfom a duty expressly provided by these rules, or

4.) absconds, or becomes insane, or otherwise incapable or unsuitable to discharge
the trust, the court may remove him, or, in its discretion, may permit him to resign. (Section
2, Rule 82)
Other grounds for the removal of the administrator discretionary upon the court:
The probate court may appoint or remove special administrators based on grounds
other than those enumerated in the Rules at its discretion, such that the need to first pass
upon and resolve the issues of fitness or unfitness and the application of the order of
preference under Section 6 of Rule 78, as would be proper in the case of a regular
administrator, do not obtain. (Ocampo vs. Ocampo, G.R. No. 187879, July 5, 2010)
Nature of the powers of administrator:
Administrators have such an interest in the execution of their trust as to entitle them
to protection from removal without just cause. Hence, Section 2 of Rule 82 of the Rules of
Court provides the legal and specific causes authorizing the court to remove an
administrator. (Gonzales vs. Aguinaldo, G.R. No. 74769 September 28, 1990)
Trial courts action of removing administrator deserves respect by the appellate
court except when there is an error or grave abuse of discretion:
The sufficiency of any ground for removal should thus be determined by said court,
whose sensibilities are, in first place, affected by any act or omission on the part of the
administrator not conformable to or in disregard of the rules or the orders of the court.
Consequently, appellate tribunals are disinclined to interfere with the action taken by a
probate court in the matter of the removal of an executor or administrator unless positive
error or gross abuse of discretion is shown. (Matute vs. CA, No. L- 26751, January 31,
1969, 26 Scra 768, 784)
Grounds for removal of administrator must be proved by evidence:
While it is conceded that the court is invested with ample discretion in the removal of
an administrator, it however must have some fact legally before it in order to justify a
removal. There must be evidence of an act or omission on the part of the administrator not
conformable to or in disregard of the rules or the orders of the court, which it deems
sufficient or substantial to warrant the removal of the administrator. (Gonzales vs.
Aguinaldo, G.R. No. 74769 September 28, 1990)
Effects of revocation of letters testamentary or administration:
It is elementary that the effect of revocation of letters testamentary or of
administration is to terminate the authority of the executor or administrator, but the acts of
the executor or administrator, done in good faith prior to the revocation of the letters, will be
protected, and a similar protection will be extended to rights acquired under a previous
grant of administration. (Vda. De Bacaling vs. Laguna, G.R. No. L-26694 December
18, 1973)
Order of appointment of special administrator an interlocutory order subject to
certiorari:
The appointment or removal of special administrators, being discretionary, is thus
interlocutory and may be assailed through a petition for certiorari under Rule 65 of the Rules
of Court. (Ocampo vs. Ocampo, G.R. No. 187879, July 5, 2010)
4.6. CLAIMS AGAINST THE ESTATE
Upon the death of a person, all his property is burdened with all his debts, his death
creating and equitable lien thereon for the benefit of the creditors. Such lien continues until
all debts are extinguished either by the payment, prescription, or satisfaction in one of the
modes recognized by law. (Sui Liong vs. Taysan, G.R. No. L-4777, November 11,
1908 )
4.6.1. TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS
Statute of non-claims:

16

Section 2, Rule 86, which provides:

Sec. 2. Time within which claims shall be filed. In the notice provided in the
preceding section, the court shall state the time for the filing of claims against the estate,
which shall not be more than twelve (12) nor less than six (6) months after the
date of the first publication of the notice. However, at anytime before an order of
distribution is entered, on application of a creditor who has failed to file his claim within the
time previously limited, the court may, for cause shown and on such terms as are equitable,
allow such claim to be filed within a time not exceeding one (1) months.
Purpose of the fixing of the period of claims:
The purpose of the law, in fixing a period within which claims against an estate must
be presented, is to insure a speedy settlement of the affairs of the deceased person and the
early delivery of the property to the person entitled to the same. (Heirs of Pizarro vs.
Consolacion, G.R. No. L-51278 May 9, 1988)
Purpose of the presentation of the claims against the estate:
The purpose of presentation of claims against decedents of the estate in the probate
court is to protect the estate of deceased persons to enable the executor or administrator
will be able to examine each claim and determine whether it is a proper one which should be
allowed. Further, the primary object of the provisions requiring presentation is to apprise the
administrator and the probate court of the existence of the claim so that a proper and timely
arrangement may be made for its payment in full or by pro-rata portion in the due course of
the administration. (Estate of Olave vs. Reyes, G.R. No. L-29407 July 29, 1983)
4.6.2.CLAIMS AGAINST THE ESTATE:
The following are money claims which can be charged against the estate:
1. All claims for money against the decedent, arising from contract, express or
implied, whether the same be due, not due, or contingent;
2. All claims for funeral expenses;
3. All claims for expenses for the last sickness of the decedent; and
4. Judgment for money against the decedent. (Section 5, Rule 86)
What does the word claims connotes?
The word "claims" as used in statutes requiring the presentation of claims against a
decedent's estate is generally construed to mean debts or demands of a pecuniary nature
which could have been enforced against the deceased in his lifetime and could have been
reduced to simple money judgments; and among these are those founded upon contract.
(Gutierrez vs. Baretto-Datu, G.R. No. L-17175, July 31, 1962)
Actions that does not survives the death of the party: Rationale:
This situation brings to the fore a consideration of Section 21, Rule 3 of the Rules of
Court, which reads:
SEC. 21. Where claim does not survive. When the action is for recovery of money,
debt or interest thereon, and the defendant dies before final judgment in the Court of First
Instance, it shall be dismissed to be prosecuted in the manner especially provided in these
rules. ( Section 21, Rule 3 of the Rules of Court)
The Philosophy behind the rule which provides for the dismissal of the civil case is
that, upon the death of defendant, all money claims should be filed in the testate or
interstate proceedings "to avoid useless duplicity of procedure." (Ignacio vs. Pambusco.,
G.R. No. L-18936, May 23, 1967)
Money claims arising from contract against the estate is an action that survives:
Generally, death of either the creditor or the debtor does not extinguish the
obligation and only obligations that are personal or are identified with the persons
themselves are extinguished by death. Section 5 of Rule 86 of the Rules of Court expressly
allows the prosecution of money claims arising from a contract against the estate of a

17

deceased debtor as these claims are not actually extinguished. (Stronghold Insurance vs.
Republic-Asahi, G.R. No. 147561, June 22, 2006)
Claims for taxes survive the death of the decedent:
Claims for taxes may be collected even after the distribution of the decedent's estate
among his heirs who shall be liable therefor in proportion of their share in the inheritance.
(Government of the Philippines vs. Pamintuan, 55 Phil. 13)
Reason for the rule:
The reason for the more liberal treatment of claims for taxes against a decedent's
estate in the form of exception from the application of the statute of non-claims, is not hard
to find. Taxes are the lifeblood of the Government and their prompt and certain availability
are imperious need. (Vera vs. Hon. Fernandez, G.R. No. L-31364 March 30, 1979)
Claims against a deceased surety on the performance bond is a claim which
survive:
Death is not a defense that he or his estate can set up to wipe out the obligations
under the performance bond. Consequently, petitioner as surety cannot use his death to
escape its monetary obligation under its performance bond. (Stronghold Insurance vs.
Republic-Asahi, G.R. No. 147561, June 22, 2006)
Claims include quasi-Contract and contingent claims
In Maclan v. Garcia, Maclan filed a civil case to recover from Ruben Garcia the
necessary expenses he spent as possessor of a piece of land. Garcia acquired the land as an
heir of its previous owner, he set up the defense that this claim should have been filed in the
special proceedings to settle the estate of his predecessor. Maclan, on the other hand,
contended that his claim arises from law and not from contract, express or implied. Thus, it
need not be filed in the settlement of the estate of Garcias predecessor, as mandated by
Section 5, Rule 87 of the Rules of Court (now Section 5, Rule 86).
The court held under these facts that a claim for necessary expenses spent as previous
possessor of the land is a kind of quasi-contract. Citing Leung Ben v OBrien, it explained
that the term implied contracts, as used in our remedial law, originated from the common
law where obligations derived from quasi-contracts and from law are both considered as
implied contracts. Thus, the term quasi-contract is included in the concept implied
contracts as used in the Rules of Court. Accordingly, the liabilities of the deceased arising
from quasi-contracts should be filed as claims in the settlement of his estate, as provided in
Section 5, Rule 86 of the Rules of Court.
A distinctive character of Metrobanks fourth-party complaint is its contingent nature the
claim depends on the possibility that Metrobank would be adjudged liable to AMC, a future
event that may or may not happen. This characteristic unmistakably marks the complaint as
a contingent one that must be included in the claims falling under the terms of Section 5,
Rule 86 of the Rules of Court. (Metropolitan Bank & Trust Company v. Absolute
Management Corporation, G.R. No. 170498. January 9, 2013)
4.6.3. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE
Remedies of a creditor:
The contract made between the administrator and the lawyer does not bind the
estate to such an extent that the lawyer can maintain an action against it and recover a
judgment which is binding upon it. In such a case the creditor has two remedies:
(1)He can prosecute an action against the administrator as an individual. If judgment
is rendered against the administrator and it is paid by him, when he presents his final
account to the Court of First Instance as such administrator he can include the amount so
paid as an expense of administration. The creditor can also
(2) Present a petition in the proceeding relating to the settlement of the estate,
asking that the court, after notice to all persons interested, allow his claim and direct the
administrator to pay it as an expense of administration. Whichever course is adopted the

18

heirs and other persons interested in the estate will have a right to inquire into the necessity
for making the contract and the value of the work performed by the attorney." (Ramos vs.
Bidin, G.R. No. L-53650 May 28, 1988)
Causal relation between the monetary claims and the acts of administration:
The rule is that where the monetary claim against the administrator has a relation to
his acts of administration in the ordinary course thereof, such claims can be presented for
payment with the court where a special proceeding for the settlement of the estate is
pending, although said claims were not incurred by the deceased during his lifetime and
collectible after his death. (Quirino vs. Gorospe, G.R. No. L-58797, January 31, 1989)
4.6.4. PAYMENT OF DEBTS
Procedure for the payment of debts:
The proper procedure allowed by the Rules of Court is for the court to order the sale
of personal estate or the sale of mortgaged of real property of the deceased and all debts or
expenses of administration should be paid out of the proceeds of the sale or mortgage. The
order for the sale or mortgage should be issued upon motion of the administrator and with
the written notice to all the heirs, legatees and devisees residing in the Philippines,
according to Rule 89, section 3, and Rule 90, section 2. (Aldamiz vs. CFI, G.R. No. L2360, December 29, 1949)
Action against a distributee of the debtors assets by the creditor based on
monetary claims:
The only instance wherein a creditor can file an action against a distributee of the
debtor's asset is under Section 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 distributes, such is not the situation in the case at bar. (De
Bautista vs. De Guzman, G.R. No. L-28298 November 25, 1983)
Instances when the probate court can issue writ of execution: Exclusive:
The circumstances that the Rules of Court expressly specifies that the probate court
may issue execution
(1) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees
and heirs in possession of the decedent's assets (Sec. 6. Rule 88),
(2) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and
(3) to satisfy the costs when a person is cited for examination in probate proceedings
(Sec. 13, Rule 142)
Under the rule of inclusion unius est exclusion alterius, above cited instances are the
only circumstances when probate court can issue a writ of execution. (Pastor, Jr. vs. CA,
G.R. No. L-56340 June 24, 1983)
4.7. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS
4.7.1.
ACTIONS
THAT
MAY
BE
BROUGHT
AGAINST
EXECUTORS
ADMINISTRATORS

AND

The only actions that may be instituted against the executor or administrator
independently of the testate or intestate proceedings are:
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 an injury to person or property, real or personal; and
4) Action to recover damages for breach of contract entered into by the decedent, but
committed by the administrator, which is personal to him (Gutierrez vs. Barreto-Datu,
G.R. No. L-17175, July 31, 1962).
Claim by the administrator against third person is by way of an action not by
motion:
"When the demand is in favor of the administrator and the party against whom it is
enforced is a third party, not under the court's jurisdiction, the demand cannot be by mere

19

motion by the administrator, but by an independent action against the third person." Matters
affecting property under judicial administration may not be taken cognizance of by the court
in the course of intestate proceedings, if the "interests of third persons are prejudiced".
(Dela Cruz vs. Camon, G.R. No. L-21034, April 30, 1966)
When does the liability of an administrator for tax payment begin?
That "the assessment is deemed made when the notice to this effect is released,
mailed or sent to the taxpayer for the purpose of giving effect to said assessment." It
appearing that the person liable for the payment of the tax, in this case the administrator,
did not receive the assessment, the assessment could not become final and executory. (RP
vs. Dela Rama, G.R. No. L-21108, November 29, 1966)
Monetary claims against the estate?
It is apparent that actions for damages caused by tortious conduct of a defendant
survive the death of the latter. Under Rule 87, section 5, the actions that are abated by
death are:
(1) claims for funeral expenses and those for the last sickness of the decedent;
(2) judgments for money; and
(3) "all claims for money against the decedent, arising from contract express or
implied".
It is not enough that the claim against the deceased party be for money, but it must
arise from "contract express or implied", and these words (also used by the Rules in
connection with attachments and derived from the common law) were construed to include
all purely personal obligations other than those which have their source in delict or tort.
(Aguas v.s Llemos, G.R. No. L-18107, August 30, 1962)
Action that survive against the executor or administrator:
Rule 88, section 1, enumerates actions that survive against a decedent's executors
or administrators, and they are:
(1) actions to recover real and personal property from the estate;
(2) actions to enforce a lien thereon; and
(3) actions to recover damages for an injury to person or property.
When heirs may act in place of the Administrator:
1) No appointed administrator yet.
Section 2 of Rule 87 of the same Rules, which also deals with administrators, states:
Sec. 2. Executor or administrator may bring or defend actions which survive. - For the
recovery or protection of the property or rights of the deceased, an executor or
administrator may bring or defend, in the right of the deceased, actions for causes which
survive.
When no administrator has been appointed, as in this case, there is all the more
reason to recognize the heirs as the proper representatives of the deceased (Go Chan vs.
Young, G.R. No. 131889, March 12, 2001)
Even if there
exceptions, viz:

is

an

appointed

administrator,

jurisprudence

recognizes

two

(2) if the executor or administrator is unwilling or refuses to bring suit; and

(3) when the administrator is alleged to have participated in the act complained
of[31] and he is made a party defendant. Evidently, the necessity for the heirs to seek judicial
relief to recover property of the estate is as compelling when there is no appointed
administrator, if not more, as where there is an appointed administrator but he is either
disinclined to bring suit or is one of the guilty parties himself.
All told, therefore, the rule that the heirs have no legal standing to sue for the recovery of
property of the estate during the pendency of administration proceedings has three
exceptions, the third being when there is no appointed administrator such as in this case.
(Rioferio vs. CA, G.R. No. 129008. January 13, 2004 )

20

4.7.2. REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR RECOVERY OF

PROPERTY FRAUDULENTLY CONVEYED BY THE DECEASED
1) There is DEFICIENCY of assets in the hands of an executor or administrator for the
payment of debts and expenses of administration;
2) The deceased in his lifetime had made or attempted to make a FRAUDULENT
CONVEYANCE of his property or had so conveyed such property that by law the conveyance
would be void as against his creditors;
3) The subject of the attempted conveyance would be liable to ATTACHMENT in his
lifetime;
4) The executor or administrator has shown NO DESIRE TO FILE the action or failed to
institute the same within a reasonable time;
5) LEAVE is granted by the court to the creditor to file the action;
6) A BOND is filed by the creditor;
7) The action by the creditor is in the NAME of the executor or administrator.
(Section 10, Rule 87)
Power of supervision and control of the probate court over properties of the
decedent:
The court which acquires jurisdiction over the properties of a deceased person
through the filing of the corresponding proceedings has supervision and control over these
properties and in compliance with this duty, the court also has the inherent power to
determine what properties, rights and credits of the deceased the administrator should
include or exclude in the inventory. (Chua vs. Absolute Management Corp., G.R. No.
144881, October 16, 2003)
Power to recover properties against third person belongs to the administrator not
the court:
The trial court has no authority to decide whether the properties, real or personal,
belong to the estate or to the persons examined. If after such examination there is good
reason to believe that the person examined is keeping properties belonging to the estate,
then the administrator should file an ordinary action in court to recover the same. (Chua
vs. Absolute Management Corp., G.R. No. 144881, October 16, 2003)
Issuance of a writ of attachment must be for the protection of the estate not of
the creditor:
Any writ of attachment necessary to secure the judgment must be related to the
protection of the estate. The writ may not issue if only to protect the personal interests of
the private respondent as a creditor of that estate. (Gruenberg vs. CA, G. R. No. L45948 September 10, 1985)
4.8. DISTRIBUTION AND PARTITION
4.8.1. LIQUIDATION
What is administration? Purpose?
Administration is for the purpose of liquidation of the estate and distribution of the
residue among the heirs and legatees. And liquidation means the determination of all the
assets of the estate and payment of all the debts and expenses. (Luzon Surety vs
Quebrar, G.R. No. L-40517 January 31, 1984)
When can distribution of the estate be done?
No distribution shall be allowed until the payment of the obligations above-mentioned has
been made or provided for, unless the distributees, or any of them, give a bond, in a sum to
be fixed by the court, conditioned for the payment of said obligations within such time as
the court directs. (Estate Of Ruiz vs. CA, G.R. No. 118671, January 29, 1996)
How will the distribution of the estate properties be done?
In settlement of estate proceedings, the distribution of the estate properties can only
be made:

21

(1) after all the debts, funeral charges, expenses

widow, and estate tax have been paid; or
(2) before payment of said obligations only if the
bond in a sum fixed by the court conditioned upon the
such time as the court directs, or when provision is
(Castillo v. Castillo, 124 Phil. 485 [1966])

of administration, allowance to the

distributees or any of them gives a
payment of said obligations within
made to meet those obligations.

Estate tax must be paid before distribution of estate properties:

The estate tax is one of those obligations that must
distribution of the estate . If not yet paid, the rule requires that the
bond or make such provisions as to meet the said tax obligation in
respective shares in the inheritance. (Estate Of Ruiz vs. CA, G.R. No.
29, 1996)

be paid before
distributees post a
proportion to their
118671, January

Declaration of heirs can be made even before the satisfaction of the obligation
chargeable to the estate:
What the court is enjoined from doing is the assignment or distribution of the residue
of the deceased's estate before the above-mentioned obligations chargeable to the estate
are first paid. Nowhere from said section may it be inferred that the court cannot make a
declaration of heirs prior to the satisfaction of these obligations. (Ngo The Hua vs. Chung
Kiat Hua, G.R. No. L-17091, September 30, 1963)
Determination of charges against the estate necessary before the distribution of
legal share:
Before any conclusion about the legal share due to a compulsory heir may be reached, it is
necessary that the net estate of the decedent must be ascertained, by deducting all payable
obligations and charges from the value of the property owned by the deceased at the time
of his death; then, all donations subject to collation would be added to it, form there, the
legitime of the compulsory heir or heirs can be established; and it is only then can it be
ascertained whether or not a donation had prejudiced the legitimes. (Natcher vs. CA, G.R.
No. 133000, October 2, 2001)
Claim of the creditor of the heirs of the deceased may be collected from the share
of the heir:
The creditor of the heirs of a deceased person is entitled to collect his claim out of
the property which pertains by inheritance to said heirs, only after the debts of the testate
or intestate succession have been paid and when the net assets that are divisible among the
heirs are known, because the debts of the deceased must first be paid before his heirs can
inherit. (Litonjua vs. Montilla, G.R. No. L-4170, January 31, 1952)
4.8.2. PROJECT OF PARTITION
Power of the probate court to determine share: Project of partition:
The probate court, in the exercise of its jurisdiction to distribute the estate, has the
power to determine the proportion or parts to which each distributee is entitled . A project of
partition is merely a proposal for the distribution of the heredity estate which the court may
accept or reject. It is the court that makes that distribution of the estate and determines the
persons entitled thereto. (Vda. De Kilayko vs. Tengco, G.R. No. 45425 March 27,
1992)
Approval of
proceedings:

the

project

of

partition

does

not

terminate

administration

In the case of Montemayor vs. Gutierrez (114 Phil. 95), an estate may be partitioned
even before the termination of the administration proceedings. Hence, the approval of the
project of partition did not necessarily terminate the administration proceedings. (Luzon
Surety vs. Quebrar, G.R. No. L-40517 January 31, 1984)
Requisites in order to consider settlement proceeding closed:

22

In order that a proceeding for the settlement of the estate of a deceased may be
deemed ready for final closure:
(1) there should have been issued already an order of distribution or assignment of
the estate of the decedent among or to those entitled thereto by will or by law, but
(2) such order shall not be issued until after it is shown that the "debts, funeral
expenses, expenses of administration, allowances, taxes, etc. chargeable to the estate"
have been paid, which is but logical and proper.
(3) Besides, such an order is usually issued upon proper and specific application for
the purpose of the interested party or parties, and not of the court. (Palicte vs. Ramolete,
G.R. No. L-55076 September 21, 1987)
When will the heirs be entitled to residue of the estate?
It is only after, and not before, the payment of all debts, funeral charges, expenses of
administration, allowance to the widow, and inheritance tax shall have been effected that
the court should make a declaration of heirs or of such persons as are entitled by law to the
residue. (Moran, Comments on the Rules of Court, 2nd ed., Vol. II, p. 397, citing Capistrano
vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.) (Jimoga-On vs.
Belmonte, 84 Phil. 545, G.R. No. L-1605, September 13, 1949)
Order of distribution and delivery of the residue of the estate closes the
settlement proceeding:
What brings an intestate (or testate) proceeding to a close is the order of distribution
directing delivery of the residue to the persons entitled thereto after paying the
indebtedness, if any, left by the deceased. (PCIB vs. Escolin, G.R. Nos. L-27860 And L27896 March 29, 1974)
Grounds to set aside final liquidation:
The only instance where a party interested in a probate proceeding may have a final
liquidation set aside is when he is left out by reason of circumstances beyond his control or
through mistake or inadvertence not imputable to negligence. Even then, the better practice
to secure relief is reopening of the same case by proper motion within the reglementary
period, instead of an independent action. (Vda. De Alberto vs. Ca, G.R. No. L-29759
May 18, 1989)
After approval of partition and distribution and receipt of share of the distributee
forecloses attack o its validity:
Where a partition had not only been approved and thus become a judgment of the
court, but distribution of the estate in pursuance of such partition had fully been carried out,
and the heirs had received the property assigned to them, they are precluded from
subsequently attacking its validity or any part of it. (Ralla vs. Judge Untalan, G.R. Nos.
L-63253-54, April 27, 1989)
Power to distribute exclusive with the power court: Doctrine of non-interference:
We hold that the separate action was improperly filed for it is the probate court that
has exclusive jurisdiction to make a just and legal distribution of the estate. In the interest of
orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate,
a court should not interfere with probate proceedings pending in a co-equal court. (Solivio
vs. CA, G.R. No. 83484, February 12, 1990)
4.8.3. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE:
Non-compliance of the order of distribution of estate does not terminate probate
proceedings:
As long as the order of the distribution of the estate has not been complied with, the
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 (Mari vs. Bonilia, 83
Phil. 137 March 19, 1949, G.R. No. L-852).
Remedies of heir who has not receive his share:

23

As a general rule, the better practice, however, for the heir who has not received his
share, is to demand his share through a proper motion in the same probate or
administration proceedings, or for reopening of the probate or administrative
proceedings if it had already been closed, and not through an independent
action. (Solivio vs. CA, G.R. No. 83484, February 12, 1990)
ANALYSIS of Solivio and Guilas case:
In Solivio case, the proceeding were still pending, thus, the movant had lost her right to
have herself declared as a co-heir in said proceedings. Because she failed to pursue the
motion in the same action but instead erroneously chose to file a separate action. Unlike the
circumstances present in the Guilas case where the estate proceedings had already been
closed and terminated for three years, thus, the separate action filed by the movant for the
annulment of the project partition was allowed to continue.
4.8.4. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION
Probate court generally cannot issue a writ of execution. It is not supposed to issue a
writ of execution because its orders usually refer to the adjudication of claims against the
estate which the executor or administrator may satisfy without the necessity of resorting to
a writ of execution. The probate court, as such, does not render any judgment enforceable
by execution. (Pastor, Jr. vs. CA, G.R. No. L-56340, June 24, 1983)
The circumstances that the Rules of Court expressly specifies that the probate court
may issue execution
(1) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees
and heirs in possession of the decedent's assets (Sec. 6. Rule 88),
(2) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and
(3) to satisfy the costs when a person is cited for examination in probate proceedings
(Sec. 13, Rule 142)
Under the rule of inclusion unius est exclusion alterius, the above cited instances are
the only circumstances when probate court can issue a writ of execution. Clearly, the
provision authorizes execution to enforce payment of debts of estate. A legacy is not a debt
of the estate.(Pastor, Jr. vs. CA, G.R. No. L-56340, June 24, 1983)
4.8.5. Effects of judgment of local courts:

Section 47 of Rule 39 provides:

The effect of a judgment or final order rendered by a court of the Philippines,
having jurisdiction to pronounce the judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific thing, or in
respect to the probate of a will, or the administration of the estate of a
deceased person, or in respect to the personal, political, or legal condition
or status of a particular person or his relationship to another, the
judgment or final order is conclusive upon the title to the thing, the will or
administration, or the condition, status or relationship of the person;
however, the probate of a will or granting of letters of administration shall
only be prima facie evidence of the death of the testator or intestate;
4.9. TRUSTEES
What is a trust?
A trust is a confidence reposed in one person, called the trustee, for the benefit of
another, called the cestui que trust, with respect to property held by the former to the latter.
The person in whom the confidence is reposed as regards property for the benefit of another
is known as trustee. (Special Proceedings by Gemilito Festin, Second Edition, 2011,
Page 134)

24

What is an express trust?

Express trusts are those which are created by the direct and positive acts of the
parties, by some writing or deed, or will, or by words evincing an intention to create a trust.
Implied trusts are those which, without being express, are deducible from the nature of the
transaction as matters of intent, or which are superinduced on the transaction by operation
of law as matters of equity, independently of the particular intention of the parties. (Olaco
vs. Co Cho Chit, G.R. No. 58010. March 31, 1993.)
What is a resulting trust?
A resulting trust is one that arises by implication of law and presumed always to
have been contemplated by the parties, the intention as to which can be found in the nature
of their transaction although not expressed in a deed or instrument of conveyance. Upon the
other hand, a constructive trust is a trust not created by any word or phrase, either
expressly or impliedly, evincing a direct intention to create a trust, but one that arises in
order to satisfy the demands of justice. (Yap vs. CA, G.R. No. 133047. August 17,
1999)
Implied trust may be established by parol evidence?
Implied Trust may be established by parol evidence, Express Trust cannot. Even then, in
order to establish an implied trust in real property by parol evidence, the proof should be as
fully convincing as if the acts giving rise to the trust obligation are proven by an authentic
document. An implied trust, in fine, cannot be established upon vague and inconclusive
proof. (Yap vs. CA, G.R. No. 133047. August 17, 1999)
Requisites to bar action by beneficiary against trustee which acquired title to the
property by acquisitive prescription:
It is true that in express trusts and resulting trusts, a trustee cannot acquire by
prescription a property entrusted to him unless he repudiates the trust. Acquisitive
prescription may bar the action of the beneficiary against the trustee in an express trust for
the recovery of the property held in trust where (a) the trustee has performed unequivocal
acts of repudiation amounting to an ouster of the cestui que trust; (b) such positive acts of
repudiation have been made known to the cestui que trust, and (c) the evidence thereon is
clear and conclusive. (Torbela vs. Rosario, G.R. No. 140528 G.R. No. 140553,
December 7, 2011 )
Elements for the existence of trust:
As a rule, however, the burden of proving the existence of a trust is on the party
asserting its existence, and such proof must be clear and satisfactorily show the existence of
the trust and its elements. The presence of the following elements must be proved: (1) a
trustor or settlor who executes the instrument creating the trust; (2) a trustee, who is the
person expressly designated to carry out the trust; (3) the trust res, consisting of duly
identified and definite real properties; and (4) the cestui que trust, or beneficiaries whose
identity must be clear. (CANEZO VS ROJAS, G.R. NO. 148788, NOVEMBER 23, 2007)
4.9.1. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR
Executor/Administrator
Accounts are NOT under oath and except for
initial and final submission of accounts; they
shall be filed only at such times as may be
REQUIRED by the court.

Court that has jurisdiction may be MTC or

RTC.
May sell, encumber or mortgage property if

25

Trustee

Accounts must be UNDER OATH and filed

ANNUALLY.
Court which has jurisdiction is RTC if
appointed to carry into effect provisions of a
will; if trustee dies, resigns or removed in a
contractual trust, RTC has jurisdiction in the
appointment of new trustee.
May sell or encumber property of estate held

it is necessary for the purpose of paying

debts, expenses of administration or
legacies, or for the preservation of property
or if sale will be beneficial to heirs, legatees
or devisees. (Upon APPLICATION to the court
with written NOTICE to the heirs.)

in trust if necessary or expedient upon

ORDER of the court.

Order of sale has NO TIME LIMIT.

Order of sale has NO TIME LIMIT.

Appointed by the court to SETTLE estate of

decedent.

Appointed to CARRY INTO EFFECT the

provisions of a will or written instrument
(contractual trust).

NOT EXEMPTED from filing bond even if such

exemption is provided in the will (bond is
only conditioned upon payment of debts).

May be EXEMPTED from filing bond if

provided in the will or if beneficiaries
requested exemption.

Services of executor or administrator are

terminated UPON PAYMENT OF DEBTS of the
estate and distribution of property to heirs.

Trusteeship is terminated upon TURNING

OVER THE PROPERTY to beneficiary after
expiration of trust (period may be provided
for in the will or trust contract).

MUST PAY the debts of the estate.

NO OBLIGATION to pay debts of beneficiary

or trustor.

(FEU Bar Reviewer 2014, Remedial Law, page 145 )

4.9.2. CONDITIONS OF THE BOND
or not

The following conditions shall be deemed a part of the bond whether written therein

1) INVENTORY. The trustee shall submit to the court an inventory of the personal and
real estate belonging to him as trustee who shall have come to his possession or knowledge.
2) MANAGEMENT AND DISPOSITION. The trustee shall manage and dispose of such
estate and faithfully discharge his trust in relation thereto.
3) ACCOUNT. The trustee shall render under oath at least once a year until his trust
is fulfilled an account of the property in his hands and of the management and disposition
thereof.
4) SETTLEMENT OF ACCOUNTS. The trustee shall settle his accounts and deliver the
remaining estate in his hands to those entitled thereto (S6 R98; Manuel R. Riguera
Special Proceeding Notes).
4.9.3. REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE:
1) If removal appears essential in the interests of the petitioners:
a) Petition to the proper RTC of the parties beneficially interested;
b) Due notice to the trustee; and
c) Hearing
2) Removal of a trustee who is insane or otherwise incapable of discharging
his trust or evidently unsuitable therefore:
a) At the initiative of the court;
b) After due notice to all persons interested
3) Resignation:
a) whether appointed by the court or under a written instrument;
b) if it appears to the court proper to allow such resignation (FEU Remedial Law
Reviewer 2014, page 146)
4.9.4. GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE

26

(1) Administration revoked if will discovered. Proceedings thereupon. If after

letters of administration have been granted on the estate of a decedent as if he had died
intestate, his will is proved and allowed 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 directs.
Proceedings for the issuance of letters testamentary or of administration under the will shall
be as hereinbefore provided (Sec. 1, Rule 82).
(2) Court may remove or accept resignation of executor or administrator.
Proceedings upon death, resignation, or removal. If an executor or administrator
neglects to render his account and settle the estate according to law, or to perform an order
or judgment of the court, or a duty expressly provided by these rules, or absconds, or
becomes insane, or otherwise incapable or unsuitable to discharge the trust, the court may
remove him, or, in its discretion, may permit him to resign. When an executor or
administrator dies, resigns, or is removed the remaining executor or administrator may
administer the trust alone, unless the court grants letters to someone to act with him. If
there is no remaining executor or administrator, administration may be granted to any
suitable person (Sec. 2, Rule 82).
4.9.5. EXTENT OF AUTHORITY OF TRUSTEE
Rights, powers and duties of a trustee:
A trustee appointed by the RTC shall have the same rights, powers, and duties, and in
whom the estate shall vest, as if he had been appointed by the testator. No person
succeeding to a trust as executor or administrator of a former trustee shall be required to
accept such trust. (Section 2, Rule 98)
In case of vacancy where the RTC has appointed a new trustee, such new trustee shall have
and exercise the same powers, rights, and duties as if he had been originally appointed, and
the trust estate shall vest in him in like manner as it had vested or would have vested, in the
trustee in whose place he is substituted; and the court may order such conveyance to be
made by the former trustee or his representatives, or by the other remaining trustees, as
may be necessary or proper to vest the trust estate in the new trustee, either alone or
Jointly with the others. (Sec. 3, Rule 98)
4.10. ESCHEAT
What is escheat?
Escheat proceedings refer to the judicial process in which the state, by virtue of its
sovereignty, steps in and claims abandoned, left vacant, or unclaimed property, without
there being an interested person having a legal claim thereto. (Rizal Commercial Banking
Corporation vs. Hi-Tri Development Corporation and Luz R. Bakunawa., G.R. No.
192413, June 13, 2012)
Escheat is a proceeding, unlike that of succession or assignment, whereby the state,
by virtue of its sovereignty, steps in and claims the real or personal property of a person
who dies intestate leaving no heir. Since escheat is one of the incidents of sovereignty, the
state may, and usually does, prescribe the conditions and limits the time within which a
claim to such property may be made. (RP vs. CA & Solano, G.R. No. 143483, January
31, 2002)
Nature of Escheat proceeding
Accordingly, the CA committed reversible error when it ruled that the issuance of
individual notices upon respondents was a jurisdictional requirement, and that failure to
effect personal service on them rendered the Decision and the Order of the RTC void for
want of jurisdiction. Escheat proceedings are actions in rem, whereby an action is
brought against the thing itself instead of the person. Thus, an action may be
instituted and carried to judgment without personal service upon the depositors or other
claimants . Jurisdiction is secured by the power of the court over the res.]Consequently, a
judgment of escheat is conclusive upon persons notified by advertisement, as publication is
considered a general and constructive notice to all persons interested. (Rizal Commercial
Banking Corporation vs. Hi-Tri Development Corporation and Luz R. Bakunawa.,
G.R. No. 192413, June 13, 2012)

27

OBJECTIVE OF ESCHEAT PROCEEDINGS

It is not the intent of the law to force depositors into unnecessary litigation and
defense of their rights, as the state is only interested in escheating balances that have been
abandoned and left without an owner.
x x x We reiterate our pronouncement that the objective of escheat proceedings is state
forfeiture of unclaimed balances. x x x Rizal Commercial Banking Corporation vs. Hi-Tri
Development Corporation and Luz R. Bakunawa., G.R. No. 192413, June 13, 2012)
4.10.1. WHEN TO FILE?
When a person dies intestate, seized of real or personal property in the Philippines,
leaving no heir or person by law entitled to the same, the Solicitor General or his
representative in behalf of the Republic of the Philippines, may file a petition in the Court of
First Instance of the province where the deceased last resided or in which he had estate, if
he resided out of the Philippines, setting forth the facts, and praying that the estate of the
deceased be declared escheated. (Section 1, Rule 91)
Dormant accounts subject of escheat
In the case of dormant accounts, the state inquires into the status, custody, and
ownership of the unclaimed balance to determine whether the inactivity was brought about
by the fact of death or absence of or abandonment by the depositor. If after the proceedings
the property remains without a lawful owner interested to claim it, the property shall be
reverted to the state to forestall an open invitation to self-service by the first
comers. However, if interested parties have come forward and lain claim to the property,
the courts shall determine whether the credit or deposit should pass to the claimants or be
forfeited in favor of the state. We emphasize that escheat is not a proceeding to penalize
depositors for failing to deposit to or withdraw from their accounts. It is a proceeding
whereby the state compels the surrender to it of unclaimed deposit balances when there is
substantial ground for a belief that they have been abandoned, forgotten, or without an
owner. (Rizal Commercial Banking Corporation vs. Hi-Tri Development Corporation
and Luz R. Bakunawa., G.R. No. 192413, June 13, 2012)
Parties in a petition for Escheat:
Rule 91 of the Revised rules of Court, which provides that ONLY the Republic of the
Philippines, through the Solicitor General, may commence escheat proceedings, did not take
effect until January 1, 1964. They shall govern all cases brought after they take effect, and
also all further proceedings in cases pending, except to the extent that in the opinion of the
court, their application would not be feasible or would work injustice, in which event the
former procedure shall apply. (Tan vs. City of Davao, G.R. No. L-44347 September 29,
1988)
"Interested party" in an escheat proceeding In a special proceeding for escheat under sections 750 and 751 the petitioner is not
the sole and exclusive interested party. Any person alleging to have a direct right or interest
in the property sought to be escheated is likewise an interested party and may appear and
oppose the petition for escheat. (RP vs. CA & Solano, G.R. No. 143483, January 31,
2002)
Real party in interest:
A "real party in interest" has been defined as the party who would be benefited or
injured by the judgment of the suit or the party entitled to avail of the suit. There can be no
doubt that private respondent bank falls under this definition for the escheat of the dormant
deposits in favor of the government would necessarily deprive said bank of the use of such
deposits. (RP vs. CFI of Manila, G.R. No. L-30381 August 30, 1988)
The jurisdiction acquired cannot be converted into one for the distribution of the
properties of the said decedents. For such proceedings (for the distribution of the estate of
the decedents) to be instituted, the proper parties must be presented and the proceedings
should comply with the requirements of the Rule. (Mun. of Magallon, Negros Occ. vs.
Bezore, G.R. No. L-14157, October 26, 1960)

28

4.10.2. REQUISITES FOR FILING OF PETITION:

1) That a person died intestate;
2) That he left no heirs or persons by law entitled to the same; and
3) The deceased left properties. ( City of Manila vs. Archbishop of Manila, GR
10033, August 30, 1917 )
Requirement of publication and notice
Hence, insofar as banks are concerned, service of processes is made by delivery of a
copy of the complaint and summons upon the president, cashier, or managing officer of the
defendant bank.[8] On the other hand, as to depositors or other claimants of the
unclaimed balances, service is made by publication of a copy of the summons in a
newspaper of general circulation in the locality where the institution is situated . A notice
about the forthcoming escheat proceedings must also be issued and published, directing
and requiring all persons who may claim any interest in the unclaimed balances to appear
before the court and show cause why the dormant accounts should not be deposited with
the Treasurer. (Rizal Commercial Banking Corporation vs. Hi-Tri Development
Corporation and Luz R. Bakunawa., G.R. No. 192413, June 13, 2012)
Effects of judgment in escheat proceedings:
A judgment in escheat proceedings when rendered by a court of competent
jurisdiction is conclusive against all persons with actual or constructive notice, but not
against those who are not parties or privies thereto. Absolute lack on the part of petitioners
of any dishonest intent to deprive the appellee of any right, or in any way injure him,
constitutes due process of law, proper notice having been observed. (RP vs. CA & Solano,
G.R. No. 143483, January 31, 2002)
4.10.3. REMEDY OF RESPONDENT AGAINST PETITIONER; PERIOD FOR FILING A
CLAIM:
The 5-year period is not a device capriciously conjured by the state to defraud any
claimant; on the contrary, it is decidedly prescribed to encourage would-be claimants to be
punctilious in asserting their claims, otherwise they may lose them forever in a final
judgment. (RP vs. CA & Solano, G.R. No. 143483, January 31, 2002)
Motion to dismiss available when the petition for escheat is groundless:
When a petition for escheat is clearly groundless for the court to proceed to the
inquisition provided by law, an interested party should not be disallowed from filing a motion
to dismiss the petition which is untenable from all standpoints. And when the motion to
dismiss is entertained upon this ground, the petition may be dismissed unconditionally and
the petitioner is not entitled to be afforded an opportunity to amend his petition. (Go Poco
Grocery vs. Pacific Biscuit Co., G.R. Nos. L-43697 and L-442200, March 31, 1938,
65 Phil. 443).
4.11. GUARDIANSHIP:
Rule governing guardianship of minors and incompetent:
Rules 92-97 of the Revised Rules of Court originally governs the Guardianship of a
minor and incompetent both as to their person and property. However, by virtue of
Administrative matter no. 03-02-05 SC (AM no. 03-02-05 SC) , the Supreme Court retained
in the meantime Rule 92-97 to be applied only to Guardianship of an Incompetent other than
a minor. Effectively, guardianship would be treated in two parts, one pursuant to
Administrative matter no. 03-02-05 SC which deals with Guardianship of Minors and the
other refers to the Guardianship of Incompetents under Rules 92-97.
Also, in Guardianship of Minors, it is the Family Court of the place where the minor
resides or if a non-resident, with the Family Court of the place where the minors property or
part thereof is situated, which has jurisdiction over the guardianship proceeding. (as can be
gleaned from the provisions of RA 8369) On the other hand, with regard to
Guardianship of Incompetents, it is the RTC of the place where the incompetent resides or if
a non-resident, with the RTC of the place where the incompetents property or part thereof is
situated, which has jurisdiction over the guardianship proceeding for such

29

incompetent. (Special Proceedings: Annotations by Herrera, 2007 Edition, page

232)
Purpose of guardianship?
A guardianship is designed to further the wards well-being, not that of the guardian.
It is intended to preserve the wards property, as well as to render any assistance that the
ward may personally require. It has been stated that while custody involves immediate care
and control, guardianship indicates not only those responsibilities, but those of one in loco
parentis as well. (Oropesa vs. Oropesa, G.R. No. 184528, April 25, 2012)
Basis of guardianship of minor:
Where minors are involved, the State acts as parens patriae which is inherent in
the supreme power of every State, whether that power is lodged in a royal person or in the
legislature, and has no affinity to those arbitrary powers which are sometimes exerted by
irresponsible monarchs to the great detriment of the people and the destruction of their
liberties. On the contrary, it is a most beneficent function, and often necessary to be
exercised in the interest of humanity, and for the prevention of injury to those who cannot
protect themselves." (De Leon vs. Lorenzo, Gr L-23096 April 27, 1972)
NATURAL GUARDIAN VS. JUDICIAL GUARDIAN : POWER TO DISPOSE OR ENCUMBER
THE PROPERTY OF WARD
Thus, a father or mother, as the natural guardian of the minor under parental
authority, does not have the power to dispose or encumber the property of the latter. Such
power is granted by law only to a judicial guardian of the wards property and even then only
with courts prior approval secured in accordance with the proceedings set forth by the Rules
of Court. (Napoleon D. Neri, Alicia D. Neri-Mondejar, Visminda D. Neri-Chambers,
Rosa D. Neri-Millan, Douglas D. Neri, Eutropia D. Illut-Cockinos and Victoria D.
Illut-Piala vs. Heirs of Hadji Yusop Uy and Julpha Ibrahim Uy., G.R. No. 194366,
October 10, 2012)

4.11.1. GENERAL POWERS AND DUTIES OF GUARDIANS (Rule 96)

Summary of the powers and duties of guardians:
1) Have the care and custody of his ward and the management of his estate or the
management of the estate only, as the case may be.(Sec.1)
2) Must pay debts of ward. (Sec. 2)
3) To settle accounts, collect debts and appear in action for ward. (Sec. 3)
4) Estate to be managed frugally, and proceeds applied to maintenance of ward.
(Sec.4)
5) May be authorized by court to join in partition proceedings after hearing. (Sec. 5)
6) The guardian may file a complaint against anyone whom is suspected of having
embezzled, concealed or conveyed away the any property of the ward. (Sec. 6)
7) Must render to the court an inventory of the estate of his ward within three months
after his appointment and annually after such appointment; such inventories and accounts
shall be sworn to by the guardian. (Sec. 7)
8) Upon the expiration of a year from the time of his appointment, and as often
thereafter as may be required, a guardian must present his account to the court for
settlement and allowance. (Sec. 8)
Power of the parent/legal guardian over the property of the minor requires
judicial power:
Under the law, a parent, acting merely as the legal (as distinguished from judicial)
administrator of the property of his/her minor children, does not have the power to dispose
of, or alienate, the property of said children without judicial approval. The powers and duties
of the widow as legal administrator of her minor children's property as provided in Rule 84
by the Rules of Court are only powers of possession and management. (Lindain vs. Ila,
G.R. No. 95305 August 20, 1992)
Power of the parents/guardian to repudiate inheritance requires judicial approval:

30

Parents and guardians may not therefore repudiate the inheritance of their wards
without judicial approval. This is because repudiation amounts to an alienation of property
which must pass the court's scrutiny in order to protect the interest of the ward. Not having
been judicially authorized, the Release and Waiver of Claim in the instant case is void and
will not bar private respondents from asserting their rights as heirs of the deceased. (Guy
vs. CA, G.R. No. 163707, September 15, 2006)
Power of the guardianship special and limited:
Generally, the guardianship court exercising special and limited jurisdiction cannot
actually order the delivery of the property of the ward found to be embezzled, concealed or
conveyed. In a categorical language of this Court, only in extreme cases, where property
clearly belongs to the ward or where his title thereto has been already judicially decided,
may the court direct its delivery to the guardian. (Parco & Bautista vs. CA, G.R. No. L33152 January 30, 1982)
Conflict of interest a ground for the removal of the guardian:
Conflict of interest has been held sufficient ground for removal, the court may
exercise discretion to render a guardian unsuitable for the trust. To the extent that a court
uses its discretion in appraising whether a person is unsuitable or incapable of discharging
his trust, it can be said that removal is discretionary but such discretion must be exercised
within the law, and when the latter has laid down the grounds for removal of a guardian,
discretion is limited to inquiring as to the existence of any of those grounds. (In The Matter
of Guardianship of Carmen Vda. De Bengson vs. PNB, G.R. No. L-17066, December
28, 1961)
Relationship of guardian and ward is dissolved by death
It is a well-established rule that the relationship of guardian and ward is necessarily
terminated by the death of either the guardian or the ward. The supervening event of death
rendered it pointless to delve into the propriety of Biasons appointment since the juridical
tie between him and Maura has already been dissolved. (Eduardo T. Abad vs. Leonardo
Biason and Gabriel Magno., G.R. No. 191993, December 5, 2012)
4.11.2. CONDITIONS OF THE BOND OF THE GUARDIAN
Before an appointed guardian enters upon the execution of his trust, he shall give a
BOND.
Conditions:
1) To make and return to the court, within three (3) months, a true and complete
INVENTORY of all the estate of his ward which shall come to his possession or knowledge or
to the possession or knowledge of any other person for him;
2) To FAITHFULLY execute the duties of his trust, to manage and dispose of the estate
according to these rules for the best interests of the ward, and to provide for the proper
care, custody, and education of the ward;
3) To Render a true and just ACCOUNT of all the estate of the ward in his hands, and
of all proceeds or interest derived therefrom, and of the management and disposition of the
same, at the time designated by these rules and such other times as the court directs; and
at the expiration of his trust to Settle his accounts with the court and Deliver and pay over
all the estate, effects, and moneys remaining in his hands, or due from him on such
settlement, to the person lawfully entitled thereto;
4) To PERFORM all orders of the court by him to be performed. (Section 1, rule 94)
Purpose of the Bond:
The purpose of the bond is for the protection of the property of the minor or
incompetent to the end that he may be assured of an honest administration of his funds
during his minority. The bond served as security to those interested in the property
settlement of the estate, and the parties interested acquire a vested interest in the bond
which cannot be divested without their consent, except in a manner prescribed by law
(Special Proceedings, Herrera, 2005 Edition P. 281).
Necessity of the Bond:

31

When required by statutes to give a bond, no person can qualify and acts as guardian
without complying with this condition precedent. The court should not grant letters of
guardianship without requiring a bond. (Special Proceedings, Herrera, 2005 Edition P.
282)
4.11.3. RULE ON GUARDIANSHIP OVER MINOR
SALIENT PROVISIONS UNDER THE RULE ON GUARDIANSHIP OF MINORS (AM NO.
03-02-05 SC):
I. APPLICABILITY OF THE RULE:
Father and mother as legal guardian of minor; court appointment not required:
The father and mother shall jointly exercise legal guardianship over the person and
property of their unemancipated common child without the necessity of a court
appointment. The Rule shall be suppletory to the provisions of the Family Code on
guardianship (Sec. 1, AM NO. 03-02-05 SC).
Who may file petition for guardianship?
On grounds authorized by law, any relative or other person on behalf of a minor, or
the minor himself if 14 years of age or over, may petition the Family Court for the
appointment of a general guardian over the person or property, or both, of such minor. The
petition may also be filed by the Secretary of DSWD and of the DOH in the case of an insane
minor who needs to be hospitalized (Sec. 1, AM NO. 03-02-05 SC).
II. GROUNDS FOR PETITION (Section 4, AM NO. 03-02-05 SC)
The grounds for the appointment of a guardian over the person or property or both,
of a minor are the following:
1) Death, continued absence or incapacity of his parents;
2) Suspension, deprivation or termination of parental authority;
3) Remarriage of his surviving parent, if the latter is found unsuitable to exercise
parental authority; or
4) When the best interest of the minor so require.
III. Who may be appointed guardian of the person or property or both of a minor
(Section 6, AM NO. 03-02-05 SC)
In default of parents or a court-appointed guardian, the court may appoint a guardian
of the person or property or both of a minor, observing as far as practicable, in the following
order of preference:
1) The surviving grandparent in case several grandparent 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; or
4) Any other person, who in the sound discretion of the court, would serve the best
interest of the minor.
IV. QUALIFICATIONS OF GUARDIANS (Section 5, AM NO. 03-02-05 SC):
a) Moral character;
b) Physical, mental and psychological condition;
c) Financial status;
d) Relationship of trust with the minor;
e) Availability to exercise the powers and duties of a guardian for the full period of
the guardianship;
f) Lack of conflict of interest with the minor; and
g) Ability to manage the property of the minor.

32

V. CASE STUDY REPORT (Section 9, AM NO. 03-02-05 SC)

The court shall order a social worker to conduct a case study of the minor and all the
prospective guardians and submit his report and recommendation to the court for its
guidance before the scheduled hearing. The social worker may intervene on behalf of the
minor if he finds that the petition for guardianship should be denied.
VI. When and How a Guardian of the Property for Nonresident Minor is Appointed;
Notice
(Section 12, AM NO. 03-02-05 SC)
When minor resides outside the Philippines but has property in the Philippines:
1) Any relative or friend of such minor or anyone interested in his property, in
expectancy or otherwise, may petition to the Family Court for the appointment of a guardian
over his property.
2) Notice of hearing shall be given to the minor by publication or any other means as
the court may deem proper. The court may dispense with the presence of the non-resident
minor.
VII. Bond of Parents as Guardians of Property of Minor (Sec. 16, AM NO. 03-02-05
SC)
If the market value of the property or the annual income of the child exceeds
P50,000.00, the parent concern shall furnish a bond in such amount as the court may
determine, but in no case less than 10% of the value of such property or annual income, to
guarantee the performance of the obligations prescribed for general guardians.
NOTE: 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 general guardian shall be heard and
resolved.
VIII. Grounds for Termination of Guardianship
1. If upon petition by the person declared incompetent, or his guardian, relative, or
friend, and after trial, it is judicially determined that the person is no longer incompetent, his
competency shall be adjudged and the guardianship shall cease. (Section1, Rule 97).
2. The guardianship may also be terminated when it appears that the guardianship is
no longer necessary. (Section 3, Rule 97)
IX. Grounds for removal or resignation of guardian (Section 24)
When a guardian becomes insane or otherwise incapable of discharging his trust or is
found thereafter to be unsuitable, or has wasted or mismanaged the property of the ward, or
has failed to render an account or make a return for thirty days after it is due, the court may,
upon reasonable notice to the guardian, remove him as such and require him to surrender
the property of the ward to the person found to be lawfully entitled thereto.
The court may allow the guardian to resign for justifiable causes.
Upon the removal or resignation of the guardian, the court shall appoint a new one.
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.
Upon termination of the trust, it is the duty of the guardian to render a true and Just
account of all the property of the ward in his hands, and of all proceeds or interest derived
therefrom, and of the management and disposition of the same, at the time designated by
this rule and such other times as the court directs; and at the expiration of his trust, to settle
his accounts with the court and deliver and pay over all the property, effects, and monies

33

remaining in his hands, or due from him on such settlement, to the person lawfully entitled
thereto, as provided for in Section 14, par. C of AM No. 03-02-05 SC.
4.12. ADOPTION:
What is adoption?
Adoption is defined as the process of making a child, whether related or not to the
adopter, possess in general, the rights accorded to a legitimate child. It is a juridical act, a
proceeding in rem which creates between two persons a relationship similar to that which
results from legitimate paternity and filiation. (IN RE: Stephanie Garcia, GR 148311,
March 31, 2005)
What is the purpose of adoption?
Formerly, Adoption used to be for the benefit of the adoptor and was intended to
afford to persons who have no child of their own the consolation of having one, by creating
through legal fiction, the relation of paternity and filiation where none exists by blood
relationship. The present tendency, however, is geared more towards 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. (Daoang vs. CA, G.R. No. L34568 March 28, 1988)
4.12.1. Distinguish domestic adoption from inter-country adoption:

DOMESTIC ADOPTION
RA 8552

INTER-COUNTRY ADOPTION
RA 8043

Proper in DOMESTIC adoption.

Proper in INTER-COUNTRY adoption.

QUALIFICATIONS:

QUALIFICATIONS:

1.)
FILIPINO CITIZEN:
(a)
legal age, in possession of full civil capacity
and legal rights,

An alien or a Filipino citizen permanently

residing abroad may file an application for intercountry adoption of a Filipino child if he/she:
(a)
is at least twenty-seven (27) years of age
and at least sixteen (16) years older than the
child to be adopted, at the time of application
unless the adopter is the parent by nature of the
child to be adopted or the spouse of such parent:

(b)
of good moral character, has not been
convicted of any crime involving moral turpitude,
emotionally and
(c)
psychologically
children,

capable

of

caring

for

(d)
at least sixteen (16) years older than the
adoptee, and who is in a position to support and
care for his/her children in keeping with the means
of the family. (Waived when adopter is a biological
parent of the adoptee, or is the spouse of the
adoptees parent)
2.)
ALIEN:
(a)
Any
alien
possessing
the
same
qualifications as above stated for Filipino nationals:
(b)
Provided,
That
his/her
country
has
diplomatic relations with the Republic of the
Philippines,
(c)
that he/she has been living in the
Philippines for at least three (3) continuous years
prior to the filing of the application for adoption
and maintains such residence until the adoption
decree is entered,
(d)
that he/she has been certified by his/her
diplomatic or consular office or any appropriate
government agency that he/she has the legal
capacity to adopt in his/her country, and that

34

(b) if married, his/her spouse must jointly file

for the adoption;
(c) has the capacity to act and assume all
rights and responsibilities of parental authority
under his national laws, and has undergone the
appropriate counseling from an accredited
counselor in his/her country;
(d) has not been convicted of a crime involving
moral turpitude;
(e) is eligible to adopt under his/her national
law;
(f) is in a position to provide the proper care
and support and to give the necessary moral
values and example to all his children, including
the child to be adopted;
(g) agrees to uphold the basic rights of the
child as embodied under Philippine laws, the U.N.
Convention on the Rights of the Child, and to
abide by the rules and regulations issued to
implement the provisions of this Act;
(h) comes from a country with whom the
Philippines has diplomatic relations and whose

(e)
his/her government allows the adoptee to
enter his/her country as his/her adopted
son/daughter:

Exception to the Requirements on

government maintains a similarly authorized and

accredited agency and that adoption is allowed
under his/her national laws; and
(i) possesses all the qualifications and none of
the disqualifications provided herein and in other
applicable Philippine laws.

residency::
(i) a former Filipino citizen who seeks to adopt a
relative within the fourth (4th) degree of
consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a relative
within the fourth (4th) degree of consanguinity or
affinity of the Filipino spouse; or
3.)
GUARDIAN:
The guardian with respect to the ward after the
termination of the guardianship and clearance of
his/her financial accountabilities.
Husband and wife shall jointly adopt, except
in the following cases:
(i) if one spouse seeks to adopt the legitimate
son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own
illegitimate son/daughter: Provided, However, that
the other spouse has signified his/her consent
thereto; or
(iii) if the spouses are legally separated from each
other.
In case husband and wife jointly adopt, or one
spouse adopts the illegitimate son/daughter of the
other, joint parental authority shall be exercised by
the spouses.

Under the jurisdiction of the FAMILY COURT where

adopter resides.

Trial custody is IN THE PHILIPPINES for 6 months

(but court may reduce period or exempt parties
from trial custody).
PETITION FOR ADOPTION may include PRAYER for
change of name, or declaration that child is a
foundling, abandoned, dependent or neglected
child.

Under the jurisdiction of the INTER-COUNTRY

ADOPTION BOARD (but a petition may also be
filed with the FAMILY COURT [where adoptee
resides] which will turn it over to ICAB).
Trial custody is IN THE COUNTRY OF ADOPTER for
6 months and is mandatory before a decree of
adoption is issued.

PETITION FOR ADOPTION only.

ADOPTEE: Legitimate or illegitimate CHILD of a

spouse or even a person who is OF LEGAL AGE may
be adopted.

ADOPTEE: Only a CHILD LEGALLY AVAILABLE for

domestic adoption may be the subject of intercountry adoption.

ANNEXES: Income tax returns, police clearance,

character reference, family picture, birth certificate
of adopter are NOT REQUIRED to be annexed in the
petition.

ANNEXES: Income tax returns, police clearance,

character reference, family picture, birth
certificate of adopter are REQUIRED to be
annexed in the petition.

Petition must be PUBLISHED at least once a week

for 3 successive weeks in a newspaper of general

NO PUBLICATION requirement.

35

circulation in the province or city where court is

situated.

Application is through a PETITION IN THE Family

Court (FC).

Application may be through AGENCY IN FOREIGN

COUNTRY and then submit to Inter-Country
Adoption Boar (ICAB).

Decree of adoption issued by FC which has

jurisdiction over case.

Decree of adoption issued by a FOREIGN COURT.

(RA 8552 AND RA 8043)

4.12.2. DOMESTIC ADOPTION ACT
a) What are the effects of adoption?
1.) Except in cases where the biological parent is the spouse of the adopter, all legal
ties between the biological parent(s) and the adoptee shall be severed and the same shall
then be vested on the adopter(s).
2.) The adoptee shall be considered the legitimate son/daughter of the adopter(s)
for all intents and purposes and as such is entitled to all the rights and obligations provided
by law to legitimate sons/daughters born to them without discrimination of any kind. To this
end, the adoptee is entitled to love, guidance, and support in keeping with the means of the
family.
3.) In legal and intestate succession, the adopter(s) and the adoptee shall have
reciprocal rights of succession without distinction from legitimate filiation. However, if the
adoptee and his/her biological parent(s) had left a will, the law on testamentary succession
shall govern. (Section 16-18 of RA 8552)
What are the rights of the adoptee?
Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled
to all the rights provided by law to a legitimate child without discrimination of any kind,
including the right to bear the surname of her father and her mother, as discussed above .
This is consistent with the intention of the members of the Civil Code and Family Law
Committees as earlier discussed. (IN RE: Stephanie Garcia, GR 148311, March 31,
2005)
Right of the adoptee to use the surname of the adopter:
The law allows the adoptee, as a matter of right and obligation, to bear the surname
of the adopter, upon issuance of the decree of adoption. It is the change of the adoptee's
surname to follow that of the adopter which is the natural and necessary consequence of a
grant of adoption and must specifically be contained in the order of the court, in fact, even if
not prayed for by petitioner. (RP vs. Hernandez, G.R. No. 117209, February 9, 1996)
The adoptee may use the surname of the adopter. The minor cannot bear adopter's
surname as a married woman, for her husband has not joined in the petition for adoption
and cannot join it, because he has children by a previous marriage and to allow the minor to
adopt the surname of the husband of the adopter (where the husband had not), would
mislead the public into believing that she (adoptee) has also been adopted by the husband,
which is not the case. (Suarez vs.. Republic, L-20914 December 24, 1965).
b) Instances when adoption may be rescinded
As provided in Section 19 of RA 8552 or the Domestic Adoption act, upon petition
of the adoptee, with the assistance of the Department if a minor or if over eighteen (18)
years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on
any of the following grounds committed by the adopter(s):
(a) repeated physical and verbal maltreatment by the adopter(s) despite having
undergone counseling;
(b) attempt on the life of the adoptee;

36

(c) sexual assault or violence; or

(d) abandonment and failure to comply with parental obligations.
Adoption, being in the best interest of the child, shall not be subject to rescission by the
adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in
Article 919 of the Civil Code.
Adopter cannot rescind the adoption, but he can forfeit some benefits of the
adoptee:
While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential
right to rescind the adoption decree even in cases where the adoption might clearly turn out
to be undesirable, it remains, nevertheless, the bounden duty of the Court to apply the law.
It is noteworthy, however, that an adopter, while barred from severing the legal ties of
adoption, can always for valid reasons cause the forfeiture of certain benefits otherwise
accruing to an undeserving child e.g. valid disinheritance (Lahom vs. Sibulo, G.R. No.
143989, July 14, 2003)
c) Effects of rescission of adoption:
1) Parental authority of biological parent or legal custody of DSWD will be restored;
2) Reciprocal rights of adoptee and adopter will be extinguished;
3) Vested rights acquired prior to judicial rescission shall be respected;
4) Successional rights shall revert to its status prior to adoption, as of the date of
judgment of judicial rescission;
5) Adoptee shall use the name stated in his original birth or foundling certificate;
6) Civil registrar will reinstate his original birth or foundling certificate. (Section 20,
RA 8552)
4.12.3. INTER-COUNTRY ADOPTION
What is inter-country adoption?
Inter-Country Adoption refers to the socio-legal process of adopting a Filipino child
by a foreign national or a Filipino citizen permanently residing abroad. (Section 3 (a) RA
8043)
When allowed?
1) Inter-country adoptions are allowed when the same shall prove beneficial to the
childs best interests, and shall serve and protect his/her fundamental rights (Sec. 2).
2) It is allowed when all the requirements and standards set forth under RA 8043 are
complied with.
3) Maximum number that may be allowed for foreign adoption shall not exceed six
hundred (600) a year for the first five (5) years.
PROCEDURE: (A.M. No. 02-6-02-SC)
1) Filing of petition with the Family Court of the place where the
prospective adoptive parents reside The petition may also pray for a change of name
of the child.
2) Order of Hearing No petition for adoption shall be set for hearing unless a
licensed social worker has made a CASE STUDY of the adoptee, adopter and the biological
parents (Sec. 11).
A copy of the order of hearing shall be published at least once a week for 3
successive weeks in a newspaper of general circulation.
At the discretion of the court, copies of the order shall also be furnished the Office of
the Solicitor General. If a change of name of the adoptee is prayed for in the petition, notice
to the Solicitor General is mandatory.

37

3) Child and Home Study Report The social worker shall verify with the Civil
Registry the real identity and registered name of the adoptee.
4) Hearing It shall be held within 6 months from the date of issuance of the order.
In case of application for change of name, hearing shall be held within 4 months after
the last publication of notice nor within 30 days prior to an election.
5) Supervised Trial Custody No petition for adoption shall be finally granted until
the adopters have been given by the court a supervised trial custody period for at least six
(6) months (Sec. 12).
6) Decree of Adoption After the publication of the order of hearing and no
opposition has been interposed to the petition, a decree of adoption shall be entered stating
the name by which the child is to be known which shall take effect as of the date the original
petition was filed EVEN if petitioners die before its issuance.
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 (Sec. 14). (A.M. No. 02-6-02-SC)
IN CASE OF RESCISSION/REVOCATION
Venue:
The petition shall be filed with the Family Court of the city or province where the
adoptee resides.
Time within which to file petition.
The adoptee, if incapacitated, must file the petition for recission or revocation of
adoption within five (5) years after he reaches the age of majority, or if he was imcompetent
at the time of the adoption, within five (5) years after recovery from such incompetency.
(Section 20 and 21 of RA A.M. No. 02-6-02-SC)
c) Best interest of the minor standard
The best interests of the minor and shall give paramount consideration to his
material and moral welfare. The best interests of the minor refer to the totality of the
circumstances and conditions as are most congenial to the survival, protection, and feelings
of security of the minor encouraging to his physical, psychological and emotional
development. It also means the least detrimental available alternative for safeguarding the
growth and development of the minor (Sec. 14[[A.M. No. 03-04-04-SC 2003-04-22]].
It would thus be against the spirit of the law if financial consideration were to be the
paramount consideration in deciding whether to deprive a person of parental authority over
his/her children. Again, it is the best interest of the child that takes precedence in adoption.
( Landingin vs. Republic, G.R. No. 164948, June 27, 2006)
4.13. WRIT OF HABEAS CORPUS
What is a writ of habeas corpus?
Writ of habeas corpus is an order issued by the court commanding a person in
custody of another to produce the body of the person on the place, date and time specified
therein.
Writ of habeas corpus not available in case a person is out on bail?
The law is well settled that a person out on bail is not so restrained of his liberty as to
be entitled to a writ of habeas corpus. The restraint of liberty which would justify the
issuance of the writ must be more than a mere moral restraint; it must be actual or physical.
(Felipe Gonzales vs.. Viola, G.R. No. L-43195, August 23, 1935)
When writ of habeas corpus may be issued?

38

The most basic criterion for the issuance of the writ, therefore, is that the individual
seeking such relief be illegally deprived of his freedom of movement or placed under some
form of illegal restraint. If an individual's liberty is restrained via some legal process, the writ
of habeas corpus is unavailing. (In Re Reynaldo De Villa, G.R. No. 158802, November
17, 2004)
Consequently, the writ may also be availed of where, as a consequence of a judicial
proceeding,
(a) there has been a deprivation of a constitutional right resulting in the restraint of a
person,
(b) the court had no jurisdiction to impose the sentence, or
(c) an excessive penalty has been imposed, as such sentence is void as to such
excess. (Feria vs. CA, G.R. No. 122954, February 15, 2000)
4.13.1. CONTENTS OF THE PETITION
Application for the writ shall be by petition signed and verified either by the party for
whose relief it is intended, or by some person on his behalf, and shall set forth:
(a) That the person in whose behalf the application is made is imprisoned or
restrained of his liberty;
(b) The officer or name of the person by whom he is so imprisoned or restrained; or, if
both are unknown or uncertain, such officer or person may be described by an assumed
appellation, and the person who is served with the writ shall be deemed the person
intended;
(c) The place where he is so imprisoned or restrained, if known;
(d) A copy of the commitment or cause of detention of such person, if it can be
procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint
is without any legal authority, such fact shall appear. (Section 3, Rule 102)
* In paragraph b, or, if both persons are unknown or uncertain, such officer or person
may be described by an assumed appellation, and the person who is served with the writ
shall be deemed the person intended.
* In paragraph d, a copy of the commitment or cause of detention should set forth, if
it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or
restraint is without any legal authority, such fact shall appear. (FEU bar reviewer,
remedial law 2014, page 153-154)
4.13.2. CONTENTS OF THE RETURN
When the person to be produced is imprisoned or restrained by an officer, the person
who makes the return shall state therein, and in other cases the person in whose custody
the prisoner is found shall state, in writing to the court or judge before whom the writ is
returnable, plainly and unequivocably:
a) Whether he has or has not the party in his custody or power, or under restraint;
b) If he has the party in his custody or power, or under restraint, the authority and
the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution,
or other process, if any, upon which the party is held;
c) If the party is in his custody or power or is restrained by him, and is not produced,
particularly the nature and gravity of the sickness or infirmity of such party by reason of
which he cannot, without danger, be brought before the court or judge;
d) If he has had the party in his custody or power, or under restraint, and has
transferred such custody or restraint to another, particularly to whom, at what time, for what
cause, and by what authority such transfer was made (Sec. 10).
4.13.3. DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION

39

Peremptory writ of habeas corpus, is one which unconditionally commands the

respondent to have the body of the detained person before the court at a time and place
therein specified. The order served in the case before us was merely a preliminary
citation or one which merely requires the respondent to appear and show cause why the
peremptory writ should not be granted. (Lee Yick Hon vs. Insular Collector Of Customs,
G.R. No. L-16779, March 30, 1921)
4.13.4. WHEN NOT PROPER/APPLICABLE
Ordinarily, the writ of habeas corpus will not be granted when there is an adequate
remedy by writ of error or appeal or by writ of certiorari, it may, nevertheless, be available in
exceptional cases, for the writ should not be considered subservient to procedural limitations
which glorify form over substance. (39 C.J.S. Habeas Corpus 13, 486-488)
It must be kept in mind that in both habeas corpus and certiorari proceedings is
whether an inferior court has exceeded its jurisdiction, the former involves a collateral attack
on the judgment and "reaches the body but not the record," while the latter assails directly
the judgment and "reaches the record but not the body." (Velasco vs. CA G.R. No.
118644 July 7, 1995)
4.13.5. WHEN WRIT DISALLOWED/DISCHARGED
Section 4, Rule 102 provides:
If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of record, and that the court or
judge had jurisdiction to issue the process, render the judgment, or make the order, the
writ shall not be allowed. (In Re Ashraf Kunting, G.R. No. 167193, April 19, 2006)
4.13.6. DISTINGUISH FROM WRIT OF AMPARO AND HABEAS DATA (See matrix of
distinctions between Habeas Corpus, Amparo and Habeas Data)
4.13.7. RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN
RELATION TO CUSTODY OF MINORS (A.M. NO. 03-04-04-SC)
CUSTODY OF MINORS
Petition for custody of minor falls within the jurisdiction of the Family Court:
A petition for the custody of minors is also provided in Rule 99, Section 1 which
provides for a petition for adoption. The petition for custody of children is now within the
exclusive original jurisdiction of Family Courts, as provided in Republic Act No. 8369, Section
5(b) [Family Courts Act of 1997].
Rule on the custody of minor under seven years of age:
Under Article 213, second paragraph of the Family Code, no child under seven years
of age shall be separated from the mother, unless the court finds compelling reasons to
order otherwise. This rule, however, is not absolute. (Espiritu vs. Court Of Appeals, G.R.
No. 115640, March 15, 1995; Orda vs. Court Of Appeals, G.R. No. 92625,
December 26, 1990; Luna vs. Intermediate Appellate Court, No. L-68374, June 18,
1985)
WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS
Right to the custody required in a petition for writ of habeas corpus of minors:
The writ of habeas corpus extends to all cases of illegal confinement or detention by
which any person is deprived of his liberty, or by which the rightful custody of any person is
withheld from the person entitled thereto. Thus, it is the proper legal remedy to enable
parents to regain the custody of a minor child even if the latter be in the custody of a third
person of his own free will. (Tijing vs. CA, G.R. No. 125901, March 8, 2001)
Petitioners must convincingly establish that the minor in whose behalf the application
for the writ is made is the person upon whom they have rightful custody. If there is doubt on
the identity of the minor in whose behalf the application for the writ is made, petitioners
cannot invoke with certainty their right of custody over the said minor. (Tijing vs. CA, G.R.
No. 125901, March 8, 2001)

40

Habeas corpus in relation Post-Conviction DNA Testing Results:

Sec. 10 of the DNA Evidence Rule (A.M. No. 06-11-5-SC, October 15,
2007) provides for the rule on the post- conviction DNA Testing results and the
remedy if favorable. It states that:
SEC. 10. Post-conviction DNA Testing. Remedy if the Results Are
Favorable to the Convict. The convict or the prosecution may file a
petition for a writ of habeas corpus in the court of origin if the results of
the post-conviction DNA testing are favorable to the convict. In case the
court, after due hearing, finds the petition to be meritorious, it shall
reverse or modify the judgment of conviction and order the release of the
convict, unless continued detention is justified for a lawful cause. A similar
petition may be filed either in the Court of Appeals or the Supreme Court,
or with any member of said courts, which may conduct a hearing thereon
or remand the petition to the court of origin and issue the appropriate
orders.
4.14. WRIT OF AMPARO (A.M. NO. 07-9-12-SC):
4.14.1. COVERAGE
The Amparo Rule was intended to address the intractable problem of (1)
"EXTRALEGAL KILLINGS" and (2) "ENFORCED DISAPPEARANCES," its coverage, in its present
form, is confined to these two instances or to threats thereof. "Extralegal killings" are
"killings committed without due process of law, i.e., without legal safeguards or judicial
proceedings." (Secretary of Defense vs. Manalo, G.R. No. 180906, October 7, 2008)
Confined only to cases of extrajudicial killings and enfroced disappearances
As it stands, the writ of amparo is confined only to cases of extrajudicial killings and
enforced disappearances, or to threats thereof.Considering that this remedy is aimed at
addressing these serious violations of or threats to the right to life, liberty and security, it
cannot be issued on amorphous and uncertain grounds, or in cases where the alleged threat
has ceased and is no longer imminent or continuing. Instead, it must be granted
judiciously so as not to dilute the extraordinary and remedial character of the writ, thus:
The privilege of the writ of amparo is envisioned basically to protect and guarantee
the rights to life, liberty, and security of persons, free from fears and threats that vitiate the
quality of this life. It is an extraordinary writ conceptualized and adopted in light of and in
response
to
the
prevalence
of
extra-legal
killings
and
enforced
disappearances. Accordingly, the remedy ought to be resorted to and granted
judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined
by the indiscriminate filing of amparo petitions for purposes less than the desire
to secure Amparo reliefs and protection and/or on the basis of unsubstantiated
allegations.(Emphasis supplied.) (RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and
ARTURO LOZADA, vs. PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO ERMITA,
AVELINO RAZON, ANGEL ATUTUBO and SPO4 ROGER VALEROSO, * G.R.
Nos. 184379-80, April 24, 2012)
Nature of the writ of amparo: Equitable and Extraordinary remedy
The remedy of the Writ of Amparo is an equitable and extraordinary remedy to
safeguard the right of the people to life, liberty and security as enshrined in the 1987
Constitution. The Rule on the Writ of Amparo was issued as an exercise of the Supreme
Courts power to promulgate rules concerning the protection and enforcement of
constitutional rights. It aims to address concerns such as, among others, extrajudicial killings
and enforced disappearances.
xxx
It is clear from this rule that this type of summary procedure only applies to
MTC/MTCC/MCTCs. It is mind-boggling how this rule could possibly apply to proceedings in an
RTC. Aside from that, this Court limited the application of summary procedure to

41

certain civil and criminal cases. A writ of Amparo is a special proceeding. It is a remedy
by which a party seeks to establish a status, a right or particular fact. It is not a civil nor a
criminal action, hence, the application of the Revised Rule on Summary Procedure is
seriously misplaced. (Secretary Leila M. De Lima, Director Nonnatus R. Rojas and
Deputy Director Reynaldo O. Esmeralda v. Magtanggol B. Gatdula; G.R. No.
204528. February 19, 2013)
The writ of amparo was promulgated by the Court pursuant to its rulemaking powers
in response to the alarming rise in the number of cases of enforced disappearances and
extrajudicial killings. It plays the preventive role of breaking the expectation of impunity in
the commission of extralegal killings and enforced disappearances, as well as the curative
role of facilitating the subsequent punishment of the perpetrators. In Tapuz v. Del Rosario,
the Court has previously held that the writ of amparo is an extraordinary remedy intended to
address violations of, or threats to, the rights to life, liberty or security and that, being a
remedy of extraordinary character, it is not one to issue on amorphous or uncertain grounds
but only upon reasonable certainty. Hence, every petition for the issuance of the writ is
required to be supported by justifying allegations of fact on the following matters:

(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent
responsible for the threat, act or omission, or, if the name is unknown or
uncertain, the respondent may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated
or threatened with violation by an unlawful act or omission of the
respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or
individuals, as well as the manner and conduct of the investigation,
together with any report;
(e) The actions and recourses taken by the petitioner to determine the
fate or whereabouts of the aggrieved party and the identity of the
person responsible for the threat, act or omission; and
(f) The relief prayed for. The petition may include a general prayer for
other just and equitable reliefs. (In the Matter of the Petition for
the Issuance of a Writ of Amparo in Favor of Lilibeth Ladaga Vs.
Major General Reynaldo Mapagu, Commanding General of the
Philippine Army's 10th Infantry Division, et al./In the Matter of
the Petition for the Issuance of a Writ of Amparo in Favor of
Angela A. Librado-Trinidad Vs. Major General Reynaldo Mapagu,
Commanding General of the Philippine Army's 10th Infantry
Division, et al.In the Matter fo the Petition for the Issuance of a
Writ of Amparo in Favor of Carlos Isagani T. Zarate Vs. Major
General Reynaldo Mapagu, Commanding General of the
Philippine Army's 10th Infantry Division, et al. G.R. No.
189689/G.R. No. 189690/G.R. No. 189691, November 13, 2012)
Objective as a curative remedy
Thus, if the Complaint filed before the DOJ had already progressed into a criminal
case, then the latter action can more adequately dispose of the allegations made by
petitioners. After all, one of the ultimate objectives of the writ of amparo as a curative
remedy is to facilitate the subsequent punishment of perpetrators. (RODOLFO NOEL
LOZADA, JR., VIOLETA LOZADA and ARTURO LOZADA, vs. PRESIDENT GLORIA
MACAPAGAL ARROYO, EDUARDO ERMITA, AVELINO RAZON, ANGEL ATUTUBO and
SPO4 ROGER VALEROSO,* G.R. Nos. 184379-80, April 24, 2012)

42

It is PREVENTIVE in that it breaks the expectation of impunity in the commission of

these offenses; it is CURATIVE in that it facilitates the subsequent punishment of
perpetrators as it will inevitably yield leads to subsequent investigation and action. In the
long run, the goal of both the preventive and curative roles is to deter the further
commission of extralegal killings and enforced disappearances. (Secretary of Defense vs.
Manalo, G.R. No. 180906, October 7, 2008)
4.14.2. DISTINGUISH FROM HABEAS CORPUS AND HABEAS DATA (See matrix of
distinctions between Habeas Corpus, Amparo and Habeas Data)
4.14.3. DIFFERENCES BETWEEN AMPARO AND SEARCH WARRANT
The writ applies to extralegal/extrajudicial killings and enforced disappearances or
threats thereof while a search warrant is an order in writing issued in the name of the
People of the Philippines, signed by a judge and directed to a peace officer, commanding
him to search for personal property described therein and bring it before the court.
(Secretary of Defense vs. Manalo, G.R. No. 180906, October 7, 2008)
Procedures
Due to the delicate and urgent nature of these controversies, the procedure was
devised to afford swift but decisive relief. It is initiated through a petition to be filed in a
Regional Trial Court, Sandiganbayan, the Court of Appeals, or the Supreme Court. The judge
or justice then makes an immediate evaluation of the facts as alleged in the petition and
the affidavits submitted with the attendant circumstances detailed. After evaluation, the
judge has the option to issue the Writ of Amparo or immediately dismiss the case.
Dismissal is proper if the petition and the supporting affidavits do not show that the
petitioners right to lie liberty or security is under threat or the acts complained of are not
unlawful. On the other hand, the issuance of the writ itself sets in motion presumptive
judicial protection for the petitioner. The court compels the respondents to appear before a
court of law to show whether the grounds for more permanent protection and interim relies
are necessary.
The respondents are required to file a Return after the issuance of the writ through the
clerk of court. The Return serves as the responsive pleading to the petition. Unlike an
Answer, the Return has other purposes aside form identifying the issues in the case,
Respondents are also required to detail the actions they had taken to determine the fate or
whereabouts of the aggrieved party.
If the respondents are public officials or employees, they are also required to state the
actions they had taken to: (i) verify the identity of the aggrieved party; (ii) recover and
preserve evidence related to the death or disappearance of the person identified in the
petition; (iii) identify witnesses and obtain statements concerning the death or
disappearance; (iv) determine the cause, manner, location, and time of death or
disappearance as well as any patter or practice that may have brought about the death or
disappearance; and (v) bring the suspected offenders before a competent court. Clearly
these matters are important to the judge so that s/he can calibrate the means and methods
that will be required to further the protections, if any, that will be due to the petitioner.
There will be a summary hearing only after the Return is filed to determine the merits of
the petition and whether interim reliefs are warranted. If the Return is not filed, the hearing
will be done ex parte. After the hearing, the court will render the judgment within ten (10)
days from the time the petition is submitted for decision.
If the allegations are proven with substantial evidence, the court shall grant the privilege of
the writ and such reliefs as may be proper ans appropriate. The judgment should contain
measures which the judge views as essential for the continued protection of the petitioner in
the Amparo case. These measures must be detailed enough o that the judge may be able to
verify and monitor the actions taken by the respondents. It is this judgment that could be
subject to appeal to the Supreme Court via Rule 45. After the measures have served their
purpose, the judgment will be satisfied. In Amparo cases, this is when the threats to the
petitioners life, liberty and security cease to exist as evaluated by the court that renders the
judgment. Parenthetically, the case may also be terminated through consolidation should a
subsequent case be filed either criminal or civil. Until the full satisfaction of the judgment,
the extraordinary remedy of Amparo allows vigilant judicial monitoring to ensure the
protection of constitutional rights. (Secretary Leila M. De Lima, Director Nonnatus R.

43

Rojas and Deputy Director Reynaldo O. Esmeralda v. Magtanggol B. Gatdula; G.R.

No. 204528. February 19, 2013)
4.14.4. WHO MAY FILE
The Rules on Writ of Amparo provides:
Section 1. Petition. The petition for a writ of amparo is a remedy available to
any person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or of a private
individual or entity. The writ shall cover extralegal killings and enforced disappearances
or threats thereof.
Writ of amparo not available in case of demolition of dwelling of squatters by final
judgment:
The threatened demolition of a dwelling by virtue of a final judgment of the court,
which in this case was affirmed with finality, is not included among the enumeration of rights
as stated in the above-quoted Section 1 for which the remedy of a writ of amparo is made
available. (Canlas vs. Napico, G.R. No. 182795, June 5, 2008)
Who may file the petition?
Section 2 of the Rule on the Writ of Amparo provides:
The petition may be filed by the aggrieved party or by any qualified person or
entity in the following order:
(a) Any member of the immediate family, namely: the spouse, children and
parents of the aggrieved party;
(b) Any ascendant, descendant or collateral relative of the aggrieved party
within the fourth civil degree of consanguinity or affinity, in default of those mentioned
in the preceding paragraph; or
(c) Any concerned citizen, organization, association or institution, if there is no
known member of the immediate family or relative of the aggrieved party.
Order of succession must be followed: mandatory and exclusive:
The exclusive and successive order mandated by the above-quoted provision must be
followed. The order of priority is not without reason"to prevent the indiscriminate and
groundless filing of petitions for Amparo which may even prejudice the right to life, liberty or
security of the aggrieved party." (Boac, Et.Al. vs. Cadapan & Empeno, G.R. Nos.
184461-62 , May 31, 2011)
Contents of the petition:
Rule on the Writ of Amparo - in line with the extraordinary character of the writ and
the reasonable certainty that its issuance demands - requires that every petition for the
issuance of the Writ must be supported by justifying allegations of fact, to wit:
"(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent responsible for the
threat, act or omission, or, if the name is unknown or uncertain, the respondent may be
described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or threatened
with violation by an unlawful act or omission of the respondent, and how such threat or
violation is committed with the attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as well as the
manner and conduct of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for the threat,
act or omission; and
(f) The relief prayed for. (Section 5, A.M. No. 07-9-12-SC)
When can the court issue a writ of amparo?

44

The writ shall issue if the Court is preliminarily satisfied with the prima facie
existence of the ultimate facts determinable from the supporting affidavits that detail the
circumstances of how and to what extent a threat to or violation of the rights to life, liberty
and security of the aggrieved party was or is being committed. (Tapuz vs. Del Rosario,
G.R. No. 182484, June 17, 2008)
WHAT NEEDS TO BE PROVED
Allegation and proof that the persons subject thereof are missing are not enough
x x x for the protective writ of amparo to issue, allegation and proof that the persons
subject thereof are missing are not enough. It must also be shown and proved by
substantial evidence that the disappearance was carried out by, or with the authorization,
support or acquiescence of, the State or a political organization, followed by a refusal to
acknowledge the same or give information on the fate or whereabouts of said missing
persons, with the intention of removing them from the protection of the law for a prolonged
period of time. Simply put, the petitioner in an amparo case has the burden of proving by
substantial evidence the indispensable element of government participation. x x x (Egardo
Navia, Ruben Dio and Andrew Buising vs. Virginia Pardico, for and in behalf in
representation of Benhur Pardico., G.R. No. 184467, June 19, 2012)
Petitioner must prove the existence of a continuing threat
In cases where the violation of the right to life, liberty or security has already ceased,
it is necessary for the petitioner in an amparo action to prove the existence of a continuing
threat.[ Thus, this Court held in its Resolution in Razon v. Tagitis:
Manalo is different from Tagitis in terms of their factual settings, as enforced
disappearance was no longer a problem in that case. The enforced disappearance
of the brothers Raymond and Reynaldo Manalo effectively ended when they
escaped from captivity and surfaced, while Tagitis is still nowhere to be found and
remains
missing
more
than
two
years
after
his
reported
disappearance. An Amparo situation subsisted in Manalo, however, because of the
continuing threat to the brothers right to security; the brothers claimed that since
the persons responsible for their enforced disappearance were still at large and had not been
held accountable, the former were still under the threat of being once again abducted, kept
captive or even killed, which threat constituted a direct violation of their right to security of
person. (Emphasis supplied.) (RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and
ARTURO LOZADA, vs. PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO ERMITA,
AVELINO RAZON, ANGEL ATUTUBO and SPO4 ROGER VALEROSO, * G.R.
Nos. 184379-80, April 24, 2012)
Issuance of writ cannot be justified in the absence of continuing restraint on a
persons liberty
As previously discussed, there is no basis to grant Lozada the privilege of the writ
of amparo, considering that the illegal restraint alleged in this case had already ceased and
there is no imminent or continuing restriction on his liberty. In Castillo v. Cruz, this Court
held as follows:
Although respondents release from confinement does not necessarily hinder
supplication for the writ of amparo, absent any evidence or even an allegation in the
petition that there is undue and continuing restraint on their liberty, and/or that
there exists threat or intimidation that destroys the efficacy of their right to be secure in
their persons, the issuance of the writ cannot be justified. (Emphasis supplied.) (RODOLFO
NOEL LOZADA, JR., VIOLETA LOZADA and ARTURO LOZADA, vs. PRESIDENT GLORIA
MACAPAGAL ARROYO, EDUARDO ERMITA, AVELINO RAZON, ANGEL ATUTUBO and
SPO4 ROGER VALEROSO,* G.R. Nos. 184379-80, April 24, 2012)

45

Actual threat from all the facts and circumstances of the case can qualify as a
violation that may be addressed under the rule on the writ of amparo
The alleged threat to herein petitioners' rights to life, liberty and security must be
actual, and not merely one of supposition or with the likelihood of happening. And, when the
evidence adduced establishes the threat to be existent, as opposed to a potential one, then,
it goes without saying that the threshold requirement of substantial evidence in Amparo
proceedings has also been met. Thus, in the words of Justice Brion, in the context of the
Amparo rule, only actual threats, as may be established from all the facts and circumstances
of the case, can qualify as a violation that may be addressed under the Rule on the Writ of
Amparo. (In the Matter of the Petition for the Issuance of a Writ of Amparo in Favor
of Lilibeth Ladaga Vs. Major General Reynaldo Mapagu, Commanding General of
the Philippine Army's 10th Infantry Division, et al./In the Matter of the Petition for
the Issuance of a Writ of Amparo in Favor of Angela A. Librado-Trinidad Vs. Major
General Reynaldo Mapagu, Commanding General of the Philippine Army's 10th
Infantry Division, et al.In the Matter fo the Petition for the Issuance of a Writ of
Amparo in Favor of Carlos Isagani T. Zarate Vs. Major General Reynaldo Mapagu,
Commanding General of the Philippine Army's 10th Infantry Division, et al. G.R.
No. 189689/G.R. No. 189690/G.R. No. 189691, November 13, 2012)
4.14.5. CONTENTS OF RETURN:
Within seventy-two (72) hours after service of the writ, the respondent shall file a
verified written return together with supporting affidavits which shall, among other things,
contain the following:
a) The lawful defenses to show that the respondent did not violate or threaten with
violation the right to life, liberty and security of the aggrieved party, through any act or
omission;
b) The steps or actions taken by the respondent to determine the fate or
whereabouts of the aggrieved party and the person or persons responsible for the threat, act
or omission;
c) All relevant information in the possession of the respondent pertaining to the
threat, act or omission against the aggrieved party; and
d) If the respondent is a public official or employee, the return shall further state the
actions that have been or will still be taken:
i. to verify the identity of the aggrieved party;
ii. to recover and preserve evidence related to the death or disappearance of the
person identified in the petition which may aid in the prosecution of the person or
persons responsible;
iii. to identify witnesses and obtain statements from them concerning the death or
disappearance;
iv. to determine the cause, manner, location and time of death or disappearance as
well as any pattern or practice that may have brought about the death or
disappearance;
v. to identify and apprehend the person or persons involved in the death or
disappearance; and
vi. to bring the suspected offenders before a competent court.
The return shall also state other matters relevant to the investigation, its resolution and
the prosecution of the case.
A general denial of the allegations in the petition shall not be allowed. (Section 9,
A.M. No. 07-9-12-SC)
4.14.6. EFFECTS OF FAILURE TO FILE RETURN
In case the respondent fails to file a return, the court, justice or judge shall proceed
to hear the petition ex parte (Section 12, A.M. No. 07-9-12-SC )
The return is the proper responsive pleading; memorandum is a prohibited
pleading.

46

First the insistence on filing an Answer was inappropriate. It is the Return that serves as the
responsive pleading for petitions for the issuance of Writs of Amparo. The requirement to file
an Answer is contrary to the intention of the Court to provide a speedy remedy to those
whose right to life, liberty and security are violated or are threatened to be violated. In utter
disregard of the Rule on the Writ of Amparo, Judge Pampilo insisted on issuing summons and
requiring an Answer.
xxx
The Return in Amparo cases allows the respondents to frame the issues subject to a hearing.
Hence, it should be done prior to the hearing, not after. A memorandum, on the other hand,
is a synthesis of the claims of the party litigants and is a final pleading usually required
before the case is submitted for decision. One cannot substitute for the other since these
submissions have different functions in facilitating the suit.
More importantly, a memorandum is a prohibited pleading under the Rule on the writ
of Amparo. (Secretary Leila M. De Lima, Director Nonnatus R. Rojas and Deputy
Director Reynaldo O. Esmeralda v. Magtanggol B. Gatdula; G.R. No. 204528.
February 19, 2013
4.14.7. OMNIBUS WAIVER RULE
The respondent must plead all his defenses in the return. Failure to do so shall
operate as a waiver of such defense not therein pleaded. (Section 10, A.M. No. 07-9-12SC)
4.14.8. PROCEDURE FOR HEARING
SUMMARY HEARING (Sec. 13) - The hearing on the petition shall be summary in
nature. However, the court, justice or judge may call for a preliminary conference. It shall be
from day to day until completed and given the same priority as petitions for habeas corpus.
4.14.9. INSTITUTION OF SEPARATE ACTION
This Rule on Writ of Amparo shall not preclude the filing of separate criminal, civil or
administrative actions. (Section 21, A.M. No. 07-9-12-SC)
4.14.10. EFFECT OF FILING OF A CRIMINAL ACTION
When a criminal action has been commenced, no separate petition for the writ shall
be filed. The reliefs under the writ shall be available by motion in the criminal case. The
procedure under this Rule shall govern the disposition of the reliefs available under the writ
of Amparo. (Section 22, A.M. No. 07-9-12-SC)
4.14.11. CONSOLIDATION:
When a criminal action is filed subsequent to the filing of a petition for the writ, the
latter shall be consolidated with the criminal action.
When a criminal action and a separate civil action are filed subsequent to a petition for a
writ of amparo, the latter shall be consolidated with the criminal action.
After consolidation, the procedure under this Rule shall continue to apply to the disposition
of the reliefs in the petition. (Section 23 of A.M. No. 07-9-12-SC)
4.14.12. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT
Interim Reliefs for Petitioner: Upon filing of the petition or at anytime before final
judgment, the court, justice or judge may grant any of the following reliefs:
(a) Temporary Protection Order. The court, justice or judge, upon motion or
motu proprio, may order that the petitioner or the aggrieved party and any member of the
immediate family be protected in a government agency or by an accredited person or
private institution capable of keeping and securing their safety. If the petitioner is an
organization, association or institution referred to in Section 3(c) of this Rule, the protection
may be extended to the officers involved.

47

The Supreme Court shall accredit the persons and private institutions that shall
extend temporary protection to the petitioner or the aggrieved party and any member of the
immediate family, in accordance with guidelines which it shall issue.
The accredited persons and private institutions shall comply with the rules and conditions
that may be imposed by the court, justice or judge.
(b) Inspection Order. The court, justice or judge, upon verified motion and after
due hearing, may order any person in possession or control of a designated land or other
property, to permit entry for the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or operation thereon.
The motion shall state in detail the place or places to be inspected. It shall be
supported by affidavits or testimonies of witnesses having personal knowledge of the
enforced disappearance or whereabouts of the aggrieved party.
If the motion is opposed on the ground of national security or of the privileged nature
of the information, the court, justice or judge may conduct a hearing in chambers to
determine the merit of the opposition.
The movant must show that the inspection order is necessary to establish the right of
the aggrieved party alleged to be threatened or violated.
The inspection order shall specify the person or persons authorized to make the
inspection and the date, time, place and manner of making the inspection and may
prescribe other conditions to protect the constitutional rights of all parties. The order shall
expire five (5) days after the date of its issuance, unless extended for justifiable reasons.
(c) Production Order. The court, justice or judge, upon verified motion and after
due hearing, may order any person in possession, custody or control of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute or contain evidence relevant to the
petition or the return, to produce and permit their inspection, copying or photographing by
or on behalf of the movant.
The motion may be opposed on the ground of national security or of the privileged
nature of the information, in which case the court, justice or judge may conduct a hearing in
chambers to determine the merit of the opposition.
The court, justice or judge shall prescribe other conditions to protect the
constitutional rights of all the parties.
(d) Witness Protection Order. The court, justice or judge, upon motion or motu
proprio, may refer the witnesses to the Department of Justice for admission to the Witness
Protection, Security and Benefit Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses to other government
agencies, or to accredited persons or private institutions capable of keeping and securing
their safety.
Interim Reliefs to Respondent: Upon verified motion of the respondent and after due
hearing, the court, justice or judge may issue an inspection order or production order under
paragraphs (b) and (c) of the preceding section.
A motion for inspection order under this section shall be supported by affidavits or
testimonies of witnesses having personal knowledge of the defenses of the respondent.
(Section 14-15 of A.M. No. 07-9-12-SC)
Writ is an interlocutory order
The Decision dated 20 March 2012 assailed by the petitioners could not be the judgment
or final order that is appealable under Section 19 of the Rule on the Writ of Amparo. x x x
This Decision pertained to the issuance of the writ under Section 6 of the Rule on
the Writ of Amparo, not the judgment under Section 18. The Decision is thus an
interlocutory order, as suggested by the fact that temporary protection, production and
inspection orders were given together with the decision. The temporary protection,
production and inspection orders are interim reliefs that may be granted by the court upon
filing of the petition but before final judgment is rendered.( Secretary Leila M. De Lima,

48

Director Nonnatus R. Rojas and Deputy Director Reynaldo O. Esmeralda v.

Magtanggol B. Gatdula; G.R. No. 204528. February 19, 2013)
Difference between the privilege of the writ of amparo and the actual order called
the writ of amparo.
The privilege of the Writ of Amparo should be distinguished from the actual
order called the Writ of Amparo. The privilege includes the availment of the entire
procedure outlined in A.M. No. 07-9-12-SC, the rule on the Writ of Amparo. After examining
the petition and its attached affidavits, the Return and the evidence presented in the
summary hearing, the judgment should detail the required acts from the respondent that will
mitigate, if not totally eradicate, the violation of or threat to the petitioners life, liberty or
security.
A judgment which simply grants the privilege of the writ cannot be executed. It is
tantamount to a failure of the judge to intervene and grant judicial succor to the petitioner.
Petitions filed to avail of the privilege of the Writ of Amparo arise out of very real and
concrete circumstances. Judicial responses cannot be as tragically symbolic or ritualistic as
granting the privilege of the Writ ofAmparo. (Secretary Leila M. De Lima, Director
Nonnatus R. Rojas and Deputy Director Reynaldo O. Esmeralda v. Magtanggol B.
Gatdula; G.R. No. 204528. February 19, 2013)
4.14.13. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF
AMPARO
Section 17 of A.M. No. 07-9-12-SC provides that the parties shall establish their
claims by substantial evidence. The respondent who is a private individual or entity must
prove that ordinary diligence as required by applicable laws, rules and regulations was
observed in the performance of duty. The respondent who is a public official or employee
must prove that extraordinary diligence as required by applicable laws, rules and regulations
was observed in the performance of duty. The respondent public official or employee cannot
invoke the presumption that official duty has been regularly performed to evade
responsibility or liability.
Requires only substantial evidence to
permanent reliefs available to petitioner

make

the

appropriate

interim

and

x x x The writ of amparo partakes of a summary proceeding that requires only

substantial evidence to make the appropriate interim and permanent reliefs available to the
petitioner. As explained in the Decision, it is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or even administrative responsibility requiring substantial evidence. The totality of
evidence as a standard for the grant of the writ was correctly applied by this Court. x x x
(IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA
IN FAVOR OF NORIEL RODRIGUEZ, petitioner vs. GLORIA MACAPAGALARROYO, GEN.
VICTOR S. IBRADO, PDG JESUS AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN.
NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS,
COL. REMIGIO M. DE VERA, an officer named MATUTINA, LT. COL. MINA, CALOG,
GEORGE PALACPAC under the name "HARRY," ANTONIO CRUZ, ALDWIN "BONG"
PASICOLAN and VINCENT CALLAGAN,respondents G.R. No. 191805)
Substantial evidence required to warrant a finding that the state has violated
amparo
The Court may be more yielding to the use of circumstantial or indirect evidence and
logical inferences, but substantial evidence is still the rule to warrant a finding that the
State has violated, is violating, or is threatening to violate, amparo petitioners' right to life,
liberty or security. (In the Matter of the Petition for the Issuance of a Writ of Amparo
in Favor of Lilibeth Ladaga Vs. Major General Reynaldo Mapagu, Commanding
General of the Philippine Army's 10th Infantry Division, et al./In the Matter of the
Petition for the Issuance of a Writ of Amparo in Favor of Angela A. LibradoTrinidad Vs. Major General Reynaldo Mapagu, Commanding General of the
Philippine Army's 10th Infantry Division, et al.In the Matter fo the Petition for the
Issuance of a Writ of Amparo in Favor of Carlos Isagani T. Zarate Vs. Major General
Reynaldo Mapagu, Commanding General of the Philippine Army's 10th Infantry

49

Division, et al. G.R. No. 189689/G.R. No. 189690/G.R. No. 189691, November 13,
2012)
STANDARD OF RELAXED ADMISSIBILITY OF EVIDENCE
Thus, in Razon, Jr. v. Tagitis, the Court laid down a new standard of relaxed
admissibility of evidence to enable Amparo petitioners to meet the required amount of proof
showing the State's direct or indirect involvement in the purported violations and found it a
fair and proper rule in amparo cases to consider all the pieces of evidence adduced in
their totality and to consider any evidence otherwise inadmissible under our
usual rules to be admissible if it is consistent with the admissible evidence
adduced. Put simply, evidence is not to be rejected outright because it is inadmissible
under the rules for as long as it satisfies the most basic test of reason i.e., relevance of
the evidence to the issue at hand and its consistency with all other pieces of adduced
evidence. (In the Matter of the Petition for the Issuance of a Writ of Amparo in
Favor of Lilibeth Ladaga Vs. Major General Reynaldo Mapagu, Commanding
General of the Philippine Army's 10th Infantry Division, et al./In the Matter of the
Petition for the Issuance of a Writ of Amparo in Favor of Angela A. LibradoTrinidad Vs. Major General Reynaldo Mapagu, Commanding General of the
Philippine Army's 10th Infantry Division, et al.In the Matter fo the Petition for the
Issuance of a Writ of Amparo in Favor of Carlos Isagani T. Zarate Vs. Major General
Reynaldo Mapagu, Commanding General of the Philippine Army's 10th Infantry
Division, et al. G.R. No. 189689/G.R. No. 189690/G.R. No. 189691, November 13,
2012)
Writ of amparo
disappearance:

available

in

case

of

extrajudicial

killings

and

forced

Writ of Amparo is swift, it is resolved through summary proceedings and the

availability of appropriate interim and permanent reliefs under the Amparo Rule, this hybrid
writ of the common law and civil law traditions - borne out of the Latin American and
Philippine experience of human rights abuses - offers a better remedy to extralegal killings
and enforced disappearances and threats thereof. The remedy provides rapid judicial relief
as it partakes of a summary proceeding that requires only substantial evidence (Secretary
of Defense vs. Manalo, G.R. No. 180906, October 7, 2008)
4.15. WRIT OF HABEAS DATA (A.M. NO. 08-1-16-SC)
NATURE OF THE WRIT: AN INDEPENDENT AND SUMMARY REMEDY
The writ of habeas data is an independent and summary remedy designed to protect the
image, privacy, honor, information, and freedom of information of an individual, and to
provide a forum to enforce ones right to the truth and to informational privacy. It seeks to
protect a persons right to control information regarding oneself, particularly in instances in
which such information is being collected through unlawful means in order to achieve
unlawful ends. It must be emphasized that in order for the privilege of the writ to be
granted, there must exist a nexus between the right to privacy on the one hand, and the
right to life, liberty or security on the other. (MARYNETTE R. GAMBOA vs. P/SSUPT.
MARLOU C. CHAN, in his capacity as the PNP-Provincial Director of Ilocos Norte,
and P/SUPT. WILLIAM 0. FANG, in his capacity as Intelligence Division, PNP
Provincial Office, Ilocos Norte., G.R. No. 19636, July 24, 2012)
4.15.1. SCOPE OF WRIT
Section 1 of the Rule on the Writ of Habeas Data provides:
Section 1. Habeas Data. The writ of habeas data is a remedy available to any
person whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee or of a private individual or
entity engaged in the gathering, collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved party.
The habeas data rule, in general, is designed to protect by means of judicial
complaint the image, privacy, honor, information, and freedom of information of an

50

individual. It is meant to provide a forum to enforce ones right to the truth and to
informational privacy, thus safeguarding the constitutional guarantees of a persons right to
life, liberty and security against abuse in this age of information technology. (Meralco vs
Lim, G.R. No. 18476, October 5, 2010)
It bears reiteration that like the writ of amparo, habeas data was conceived as a
response, given the lack of effective and available remedies, to address the extraordinary
rise in the number of killings and enforced disappearances. Its intent is to address violations
of or threats to the rights to life, liberty or security as a remedy independently from those
provided under prevailing Rules. (Meralco vs Lim, G.R. No. 18476, October 5, 2010)
4.15.2. AVAILABILITY OF WRIT
The writ can be invoked by such person to:
1) Find out the information collated about him, particularly by law enforcement
agencies, and
2) Compel them to disclose the use and purpose of such information.
4.15.3. DISTINGUISHED FROM HABEAS CORPUS AND AMPARO (See matrix of
distinctions between Habeas Corpus, Amparo and Habeas Data)
4.15.4. CONTENTS OF THE PETITION
A verified written petition for a writ of habeas data should contain:
(a) The personal circumstances of the petitioner and the respondent;
(b) The manner the right to privacy is violated or threatened and how it affects the
right to life, liberty or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to secure the data or
information;
(d) The location of the files, registers or databases, the government office, and the
person in charge, in possession or in control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating, rectification, suppression
or destruction of the database or information or files kept by the respondent.
In case of threats, the relief may include a prayer for an order enjoining the act
complained of; and
(f) Such other relevant reliefs as are just and equitable. (Section 6, A. M. No. 08-1-16-SC)
Threat must be supported by independent and credible evidence
It must be stressed, however, that such threat must find rational basis on the
surrounding circumstances of the case. In this case, the petition was mainly anchored on the
alleged threats against his life, liberty and security by reason of his inclusion in the militarys
order of battle, the surveillance and monitoring activities made on him, and the intimidation
exerted upon him to compel him to be a military asset. While as stated earlier, mere threats
fall within the mantle of protection of the writs of amparo and habeas data, in the
petitioners case, the restraints and threats allegedly made allegations lack corroborations,
are not supported by independent and credible evidence, and thus stand on nebulous
grounds. (In the matter of the petition for the writ of Amparo and the writ of
Habeas Data in favor of Francis Saez, petitioner vs. GLORIA MACAPAGAL ARROYO,
GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, 22Nn MICO, CAPT.
LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL GUTIERREZ, CAPT. JAKE
OBLIGADO, CPL. ROMAN ITO QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL
FONTANILLA, A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST SERGEANT, PVT. ZALDY
OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A CERTAIN JOEL, RODERICK
CLANZA and JEFFREY GOMEZ, respondents, G.R. No. 183533, September 25, 2012)
SUFFICIENT COMPLIANCE FOR ISSUANCE OF WRIT
In the present case, the Court notes that the petition for the issuance of the privilege
of the writs of amparo and habeas data is sufficient as to its contents. The petitioner made
specific allegations relative to his personal circumstances and those of the respondents. The
petitioner likewise indicated particular acts, which are allegedly violative of his rights and
the participation of some of the respondents in their commission. As to the prerequisite
conduct and result of an investigation prior to the filing of the petition, it was explained that

51

the petitioner expected no relief from the military, which he perceived as his oppressors,
hence, his request for assistance from a human rights organization, then a direct resort to
the court.
Anent the documents sought to be the subject of the writ of habeas data prayed for,
the Court finds the requirement of specificity to have been satisfied. The documents subject
of the petition include the order of battle, those linking the petitioner to the CPP and those
he signed involuntarily, and military intelligence reports making references to him. Although
the exact locations and the custodians of the documents were not identified, this does not
render the petition insufficient. Section 6(d) of the Rule on the Writ of Habeas Data is clear
that the requirement of specificity arises only when the exact locations and identities of the
custodians are known. The Amparo Rule was not promulgated with the intent to make it a
token gesture of concern for constitutional rights. Thus, despite the lack of certain contents,
which the Rules on the Writs of Amparo and Habeas Data generally require, for as long as
their absence under exceptional circumstances can be reasonably justified, a petition should
not be susceptible to outright dismissal.
From the foregoing, the Court holds that the allegations stated in the petition for the
privilege of the writs of amparo and habeas data filed conform to the rules. However, they
are mere allegations, which the Court cannot accept hook, line and sinker, so to speak,
and whether substantial evidence exist to warrant the granting of the petition is a different
matter altogether. (In the matter of the petition for the writ of Amparo and the writ
of Habeas Data in favor of Francis Saez, petitioner vs. GLORIA MACAPAGAL
ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, 22Nn MICO,
CAPT. LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL GUTIERREZ, CAPT. JAKE
OBLIGADO, CPL. ROMAN ITO QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL
FONTANILLA, A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST SERGEANT, PVT. ZALDY
OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A CERTAIN JOEL, RODERICK
CLANZA and JEFFREY GOMEZ, respondents, G.R. No. 183533, September 25, 2012)
4.15.5. CONTENTS OF RETURN
The respondent shall file a verified written return together with supporting affidavits
within five (5) working days from service of the writ, which period may be reasonably
extended by the Court for justifiable reasons. The return shall, among other things, contain
the following:
(a) The lawful defenses such as national security, state secrets, privileged
communications, confidentiality of the source of information of media and others;
(b) In case of respondent in charge, in possession or in control of the data or
information subject of the petition;
(i) a disclosure of the data or information about the petitioner, the nature of
such data or information, and the purpose for its collection;
(ii) the steps or actions taken by the respondent to ensure the security and
confidentiality of the data or information; and,
(iii) the currency and accuracy of the data or information held; and,
(c) Other allegations relevant to the resolution of the proceeding.
A general denial of the allegations in the petition shall not be allowed. (Section 10,
A. M. No. 08-1-16-SC)
4.15.6. INSTANCES WHEN PETITION MAY BE HEARD IN CHAMBERS
A hearing in chambers may be conducted where the respondent invokes the defense
that the release of the data or information in question shall compromise national security or
state secrets, or when the data or information cannot be divulged to the public due to its
nature or privileged character. (Section 12, A. M. No. 08-1-16-SC)
4.15.7. CONSOLIDATION
When a criminal action is filed subsequent to the filing of a petition for the writ, the
latter shall be consolidated with the criminal action.
When a criminal action and a separate civil action are filed subsequent to a petition
for a writ of habeas data, the petition shall be consolidated with the criminal action.

52

After consolidation, the procedure under this Rule shall continue to govern the disposition of
the reliefs in the petition. (Section 21, A. M. No. 08-1-16-SC)
4.15.8. EFFECT OF FILING OF A CRIMINAL ACTION
When a criminal action has been commenced, no separate petition for the writ shall
be filed. The relief under the writ shall be available to an aggrieved party by motion in the
criminal case.
The procedure under this Rule shall govern the disposition of the reliefs available under the
writ of habeas data. (Section 22, A. M. No. 08-1-16-SC)
4.15.9. INSTITUTION OF SEPARATE ACTION
The filing of a petition for the writ of habeas data shall not preclude the filing of
separate criminal, civil or administrative actions. (Section 20, A. M. No. 08-1-16-SC)
4.15.10. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF HABEAS
DATA
As to the Writ of Habeas Data, it is indispensable requirement before the privilege of
the writ may be extended is the showing, at least by substantial evidence, of an actual or
threatened violation of the right to privacy in life, liberty or security of the victim. This, in the
case at bench, the petitioner failed to do. (Roxas vs. Macapagal-Arroyo, G.R. No.
189155, September 7, 2010)
Substantial evidence required
Given that the totality of the evidence presented by the petitioner failed to support
his claims, the reliefs prayed for, therefore, cannot be granted. The liberality accorded to
amparo and habeas data cases does not mean that a claimant is dispensed with the onus of
proving his case. Indeed, even the liberal standard of substantial evidence demands some
adequate evidence. (In the matter of the petition for the writ of Amparo and the
writ of Habeas Data in favor of Francis Saez, petitioner vs. GLORIA MACAPAGAL
ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, 22Nn MICO,
CAPT. LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL GUTIERREZ, CAPT. JAKE
OBLIGADO, CPL. ROMAN ITO QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL
FONTANILLA, A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST SERGEANT, PVT. ZALDY
OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A CERTAIN JOEL, RODERICK
CLANZA and JEFFREY GOMEZ, respondents, G.R. No. 183533, September 25, 2012)
Compliance with technical rules of procedure is ideal but it cannot be accorded
primacy
Among the grounds cited by the CA in denying the petition for the issuance of the
writs of amparo and habeas data was the defective verification which was attached to the
petition. In Tagitis, supporting affidavits required under Section 5(c) of the Rule on the Writ of
Amparo were not submitted together with the petition and it was ruled that the defect was
fully cured when the petitioner and the witness personally testified to prove the truth of their
allegations in the hearings held before the CA. In the instant case, the defective verification
was not the sole reason for the CAs denial of the petition for the issuance of the writs of
amparo and habeas data. Nonetheless, it must be stressed that although rules of procedure
play an important rule in effectively administering justice, primacy should not be accorded
to them especially in the instant case where there was at least substantial compliance with
the requirements and where petitioner himself testified in the hearings to attest to the
veracity of the claims which he stated in his petition.
To conclude, compliance with technical rules of procedure is ideal but it cannot be
accorded primacy. In the proceedings before the CA, the petitioner himself testified to prove
the veracity of his allegations which he stated in the petition. Hence, the defect in the
verification attached to the petition. Hence, the defect in the verification attached to the
petition was deemed cured. (In the matter of the petition for the writ of Amparo and
the writ of Habeas Data in favor of Francis Saez, petitioner vs. GLORIA
MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON,
22Nn MICO, CAPT. LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL
GUTIERREZ, CAPT. JAKE OBLIGADO, CPL. ROMAN ITO QUINT ANA, PVT. JERICO
DUQUIL, CPL. ARIEL FONTANILLA, A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST
SERGEANT, PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A

53

CERTAIN JOEL, RODERICK CLANZA and JEFFREY GOMEZ, respondents, G.R. No.
183533, September 25, 2012)

SUMMARY
SUMMARY OF
OF DISTINCTIONS
DISTINCTIONS BETWEEN
BETWEEN THE
THE WRIT
WRIT OF
OF AMAPARO,
AMAPARO,
WRIT
WRIT OF
OF HABEAS
HABEAS CORPUS
CORPUS AND
AND WRIT
WRIT OF
OF HABEAS
HABEAS DATA
DATA
WRIT OF HABEAS
CORPUS

WRIT OF AMPARO

WRIT OF HEAS DATA

LEGAL BASIS

RULE 102 OF THE

REVISED RULES OF
COURT

A.M. No. 07-9-12-SC

A. M. No. 08-1-16-SC

DATE OF
EFFECTIVITY

July 1, 1997

October 24, 2007

February 2, 2008

A remedy available to
any person whose right to life,
liberty and security is violated
or threatened with violation
by an
unlawful act
or
omission of a public official or
employee, or of a private
individual or entity.

A remedy available to
any person whose right to
privacy in life, liberty or
security is violated or
threatened by an unlawful
act or omission of a public
official or employee, or of a
private individual or entity
engaged in the gathering,
collecting or storing of data
or information regarding
the person, family, home
and correspondence of the
aggrieved party.

Extralegal killings and

enforced disappearances or
threats thereof.

1. To all cases of violation

or threat to the privacy of
a person, his family, home
and correspondence
2. To all habeas corpus and
amparo
cases.
(It
complements the two writs
by helping produce or
correct
data
that
is
relevant to protect the
rights of a person who
disappeared or is a victim
of extrajudicial killing)

DEFINITION

SCOPE

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.

1. To all cases of illegal

confinement or detention
by which any person is
deprived of his liberty;
2. To all cases where the
rightful custody of any
person is withheld
thereto.

54

WHO MAY FILE

The most basic criterion

for the issuance of the
writ, therefore, is that
the individual seeking
such relief be illegally
deprived of his freedom
of movement or placed
under some form of
illegal restraint. If an
individual's
liberty
is
restrained via some legal
process, the writ of
habeas
corpus
is
unavailing.
(In
Re
Reynaldo
De
Villa,
G.R.
No.
158802,
November 17, 2004)

1. Regional Trial Court

WHERE TO FILE

2. Court of Appeals or
any member thereof
3. Supreme Court or any
member thereof

WHEN TO FILE

PUNISHMENT FOR
REFUSAL OR
FILING OF FALSE
RETURN

-NOTHING IS STATED
IN THE RULE-

Forfeit to the party

aggrieved the sum of
one thousand pesos
(P1000) or have the
party failing to file the
return be cited for
Contempt.

The petition may be filed by

the aggrieved party or by any
qualified person or entity in
the following order:
(a) Any member of the
immediate family, namely:
the spouse, children and
parents of the aggrieved
party;
(b)
Any
ascendant,
descendant
or
collateral
relative of the aggrieved
party within the fourth civil
degree of consanguinity or
affinity, in default of those
mentioned in the preceding
paragraph; or
(c) Any concerned citizen,
organization, association or
institution, if there is no
known
member
of
the
immediate family or relative
of the aggrieved party.
The exclusive and successive
order
mandated
by
the
above-quoted provision must
be followed to prevent the
indiscriminate and groundless
filing of petitions for amparo
which may even prejudice the
right to life, liberty or security
of the aggrieved party."
(Boac, Et.Al. vs.. Cadapan
&
Empeno,
G.R.
Nos.
184461-62 , May 31, 2011)

1. RTC of the place where the

threat, act or omission was
committed or any of its
elements occurred.
2. Sandiganbayan,
3. CA or any of its Justices
4. SC or any of its Justices

Within 72 hours after service

of the writ, with supporting
affidavit

Imprisonment or Fine for

Contempt

The writ of habeas data is

a remedy available to
any person whose right
to privacy in life, liberty
or security is violated
or threatened by an
unlawful
act
or
omission of a public
official or employee or of a
private individual or entity
engaged
in
the
gathering, collecting or
storing
of
data
or
information regarding the
person, family, home and
correspondence
of
the
aggrieved party.

1. RTC where the petitioner

or respondent resides, or
that which has jurisdiction
over the place where the
data or information is
gathered, collected or
stored, at the option of the
petitioner.
2. SC or the CA or the
Sandiganbayan when the
action concerns public data
files of government offices.
Within 5 working days from
service of the writ, with
supporting affidavit (may
be extended by the Court
for justifiable reasons)

Imprisonment or Fine for

Contempt

Sources and Legal Basis: Rule 102, A.M. NO. 07-9-12-SC, A.M. NO. 08-1-16-SC,
Special Proceedings by Gemylito Festin)
4.16. CHANGE OF NAME

55

In special proceedings for change of name, what is involved is not a mere matter of
allowance or disallowance of the request, but a judicious evaluation of the sufficiency and
propriety of the justifications advanced in support thereof, mindful of the consequent results
in the event of its grant and with the sole prerogative for making such determination being
lodged in the courts. (RP vs. CA & Maximo Wong, G.R. No. 97906 May 21, 1992)
4.16.1. DIFFERENCES UNDER RULE 103, R.A. NO. 9048 AND RULE 108

SUMMARY
SUMMARY OF
OF DISTINCTIONS
DISTINCTIONS BETWEEN
BETWEEN RULE
RULE 103,
103, RULE
RULE 108
108 AND
AND
RA
9048
RA 9048
Rule 103

Rule 108

RA 9048

Name of Law

Change of Name

Cancellation or Correction
of Entries in the Civil
Registry

Clerical Error Law

Subject
Matter

Change of full name

(Substantial corrections)

Change or correction in the

civil registry (Substantial
corrections)

Change of first name and

nickname and civil entries
(only typographical or
Clerical errors)

A person desiring to change

his name (Section 1)

Any person interested in

any act, event, order or
decree concerning the civil
status of persons which has
been recorded in the civil
register. (Section 1)

Who may File

Venue

Contents of
the Petition

RTC of the province in which

petitioner resides for three
years prior to filing, or, in
the City of Manila, to the
Juvenile and Domestic
Relations Court.

A petition for change of

name shall be signed and
verified by the person
desiring his name changed,
or some other person on his
behalf, and shall set forth:
(a) That the petitioner has
been a bona fide resident of
the province where the
petition is filed for at least
three (3) years prior to the
date of such filing;
(b) The cause for which the
change of the petitioner's
name is sought;
(c) The name asked for.
(Section 2)

RTC of City or province

where the corresponding
civil registry is located.

(a) That the petitioner has

been a bona fide resident
of the province where the
petition is filed for at least
three (3) years prior to the
date of such filing;
(b) The cause for which the
change of the petitioner's
name is sought;
(c) The name asked for.
(Section 2)

Any person having direct and

personal interest in the
correction of a clerical or
typographical error in an entry
and/or change of first name or
nickname. (Section 3)
1.)
Local
civil
registry
office of the city or municipality
where the record being sought
to be corrected or changed is
kept.
2.)
Local civil registrar of
the place where the interested
party is presently residing or
domiciled.
Philippine
Consulates.
(Section 3)
The petition shall be in the
form of an affidavit, subscribed
and sworn to before any person
authorized by the law to
administer oaths. The affidavit
shall set forth facts necessary
to establish the merits of the
petition
and
shall
show
affirmatively that the petitioner
is competent to testify to the
matters stated. The petitioner
shall
state
the
particular
erroneous entry or entries,
which are sought to be
corrected and/or the change
sought to be made.
The petition shall be
supported with the following
documents:
1.
A
certified
true
machine copy of the certificate
or of the page of the registry
book containing the entry or
entries sought to be corrected
or changed.
2.
At least two (2) public

56

or private documents showing

the correct entry or entries
upon which the correction or
change shall be based; and
3.
Other documents which
the petitioner or the city or
municipal civil registrar or the
consul general may consider
relevant and necessary for the
approval of the petition.
The petition and its
supporting papers shall be filed
in three (3) copies to be
distributed as follows: first copy
to the concerned city or
municipal civil registrar, or the
consul general; second copy to
the Office of the Civil Registrar
General; and third copy to the
petitioner.
(Section 5)
(a) when the name is
ridiculous, dishonorable or
extremely difficult to write
or pronounce;
(b) when the change results
as a legal consequence such
as legitimation;
(c) when the change will
avoid confusion;
(d)
when
one
has
continuously used and been
known since childhood by a
Filipino name, and was
unaware of alien parentage;
Grounds

(e) a sincere desire to adopt

a Filipino name to erase
signs of former alienage, all
in good faith and without
prejudicing anybody; and

Upon good and valid

grounds, the entries in the
civil register may be
cancelled or corrected.
(Section 2)

(f)
when
the
surname
causes embarrassment and
there is no showing that the
desired change of name
was for a fraudulent purpose
or that the change of name
would
prejudice
public
interest.
(RP
vs.
Coseteng-Magpayo, G.R.
No. 189476, February 2,
2011)

What kind of
Proceeding

57

Judicial Proceeding. (Hearing

is necessary)

Summary in nature if the

correction is clerical or
typographical only. Can be
converted to an adversarial
proceeding if there are
substantial changes and
effect to the status of an
individual. (Hearing is
necessary)

The petition for change of first

name or nickname may be
allowed in any of the following
cases:
1.
The petitioner finds the
first name or nickname to be
ridiculous,
tainted
with
dishonor or extremely difficult
to write or pronounce.
2.
The new first name or
nickname has been habitually
and continuously used by the
petitioner and he has been
publicly known by that by that
first name or nickname in the
community: or
3.
The change will avoid
confusion.
(Section 4)

Administrative proceeding.
(Only an investigation may be
conducted.)

What to File

Notice and
Publication

A signed and verified

petition.

File a verified petition for

the cancellation or
correction of any entry.

Once a week for three

consecutive weeks in a
newspaper of general
circulation. (notice of
hearing)

Once a week for three

consecutive weeks in a
newspaper of general
circulation. (notice of
hearing)

** hearing shall not be

conducted w/in 30 days
prior to election nor w/in 4
months after last publication
of notice**

File an affidavit.

At least once a week for two

consecutive weeks in a
newspaper of general
circulation. Furthermore, the
petitioner shall submit a
certification from the
appropriate law enforcement
agencies that he has no
pending case or no criminal
record (publish the whole
affidavit)

Duty city or municipal civil

registrar or the consul general
to whom the petition is
presented shall examine the
petition and its supporting
documents. He shall post the
petition in a conspicuous place
provided for that purpose for
ten (10) consecutive days after
he finds the petition and its
supporting documents
sufficient in form and
substance.

Posting

No posting

No posting

Participant
from the
Government

The Solicitor General must

be notified by service of a
copy of the petition.

The Civil Registrar

concerned is made a party
to the proceedings as
respondent.

The Civil Registrar or the

Consul.

Where to
Appeal

Appeal the Decision to the

Court of appeals, fifteen (15)
days from receipt of
judgment.

Appeal the Decision to the

Court of appeals, fifteen
(15) days from receipt of
judgment.

Appeal decision to the To the

Civil Register General (Head of
NCSO)

Sources and Legal Basis: RULE 103, RULE 108 AND RA 9048, Special Proceedings
2011 by Gemilito Festin
4.16.2. GROUNDS FOR CHANGE OF NAME
SECTION 4. Grounds for Change of First Name or Nickname. The petition
for change of first name or nickname may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously used
by the petitioner and he has been publicly known by that first name or nickname in the
community; or
(3) The change will avoid confusion. (Section 4, Rule 108)
However, a change of name does not alter ones legal capacity or civil status . RA
9048 does not sanction a change of first name on the ground of sex reassignment. Rather
than avoiding confusion, changing petitioners first name for his declared purpose may only
create grave complications in the civil registry and the public interest. (Silverio vs. CA
G.R. No. 174689, October 22, 2007)
Intersex a ground for change of name:

58

Where the person is biologically or naturally intersex the determining factor in his
gender classification would be what the individual, like respondent, having reached the age
of majority, with good reason thinks of his/her sex. Respondent here has simply let nature
take its course and has not taken unnatural steps to arrest or interfere with what he was
born with. (People vs. Cagandahan, G.R. No. 166676, September 12, 2008)
Factors to be considered in case of change of name:
The reasons offered for changing the name of petitioner's daughter are: (1) that "her
daughter grew up with, and learned to love and recognize Alfredo de la Cruz as her own
father"; (2) to afford her daughter a feeling of security; and (3) that "Alfredo de la Cruz
agrees to this petition, and has signified his conformity at the foot of this pleading". Clearly,
these are not valid reasons for a change of name. (RP vs. Hon. Marcos & Pang Cha
Quen, G.R. No. L-31065, February 15, 1990)
An illegitimate child cannot use the surname of his father:
An illegitimate child whose filiation is not recognized by the father bears only a given
name and his mother surname, and does not have a middle name. The name of the
unrecognized illegitimate child therefore identifies him as such and it is only when the
illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged
by the father in a public document or private handwritten instrument that he bears both his
mothers surname as his middle name and his fathers surname as his surname. (RP vs.
Capote, G.R. No. 157043, February 2, 2007)
4.17. ABSENTEES
Appointment of representative in favor of the absentee:
The law (see Articles 381, 382 and 383) requires the judge to appoint a
representative for the absentee precisely to safeguard the property or interest of the latter.
It is thus imperative that the declaration of absence be for a specific purpose, and that
purpose can be no other than the protection of the interest or property of the absentee. (In
Re Petition for Declaration Of Absence Of Roberto Reyes vs. Alejandro, G.R. No. L32026 January 16, 1986)
Requirements for representation:
There must be an immediate necessity for the representation of the absentee in
some specific urgent matters. (Castan Commentary)
Reason for the declaration of absence:
The need to have a person judicially declared an absentee is when he has properties
which have to be taken cared of or administered by a representative appointed by the Court
(Article 384, Civil Code) The petition to declare the husband an absentee and the petition to
place the management of the conjugal properties in the hands of the wife may be combined
and adjudicated in the same proceedings. (Peyer vs. Martinez, 88 Phil. 72, 80)
4.17.1. PURPOSE OF THE RULE:
A perusal of Rule 107 of the Rules of Court on absentees reveals that it is based on
the provisions of Title XIV of the New Civil Code on absence. And the reason and purpose of
the provisions of the New Civil Code on absence (Arts. 381 to 396) are:
(1) The interest of the person himself who has disappeared;
(2) The rights of third parties against the absentee, especially those who have rights
which would depend upon the death of the absentee; and
(3) The general interest of society which may require that property does not remain
abandoned without someone representing it and without an owner (Civil Code by Francisco,
Vol. 2, pp. 930- 931, 1953 Ed.) (In Re Petition For Declaration Of Absence Of Roberto
Reyes Vv Alejandro, G.R. No. L-32026 January 16, 1986)
4.17.2. WHO MAY FILE; WHEN TO FILE
WHO MAY FILE PETITION?

59

a) Spouse present;
b) Heirs instituted in a will;
c) Relatives who would succeed intestate;
d) Those who have over the absentees property some right subordinated to the
condition of his death.
WHEN TO FILE PETITION?
a) After the lapse of two (2) years from his disappearance or since the receipt of the
last news about the absentee; or
b) After the lapse of five (5) years from such disappearance, if the absentee has left a
person to administer his property. (Section 2, Rule 107)
Title XI of the Family Code is entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY
LAW contains the following provision, inter alia:
Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title
shall apply in all cases provided for in this Code requiring summary court proceedings. Such
cases shall be decided in an expeditious manner without regard to technical rules. (Art.
238, Title XI of the Family Code)
There is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a
summary proceeding under the Family Code, not a special proceeding under the Revised
Rules of Court appeal for which calls for the filing of a Record on Appeal. It being a summary
ordinary proceeding, the filing of a Notice of Appeal from the trial courts order sufficed. (RP
vs CA, G.R. No. 163604. May 6, 2005)
4.18. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY:
Substantive basis of correction or alteration of entries in the Civil Registry:
Article 412 of the New Civil Code is the only substantial law covering the alteration or
correction of entries in the civil register which alteration or correction can only be effected
through a judicial order.
When petition involves substantial and controversial alterations
It is clear from the foregoing discussion that when a petition for cancellation or correction of
an entry in the civil register involves substantial and controversial alterations, including
those on citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, a strict
compliance with the requirements of Rule 108 of the Rules of Court is mandated. If the
entries in the civil register could be corrected or changed through mere summary
proceedings and not through appropriate action wherein all parties who may be affected by
the entries are notified or represented, the door to fraud or other mischief would be set
open, the consequence of which might be detrimental and far reaching. (Republic of the
Philippines vs. Dr. Norma S. Lugsanay Uy., G.R. No. 198010, August 12, 2013)
Changes in citizenship or status are substantial changes:
Changes in the citizenship of a person or in his status from legitimate to
illegitimate or from married to not married are substantial as well as controversial, which can
only be established in an appropriate adversary proceeding. (Rosales vs Castillo-Rosales,
G.R. No. L-31712 September 28, 1984)
Clerical or typographical error can be subject of administrative correction:
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. What is left for the scope of operation of Rule 108 are substantial changes
and corrections in entries of the civil register. (Lee v. CA, G.R. No. 118387, October 11,
2001)
Requirement of two (2) notice of hearing to different potential oppositors

60

The fact that the notice of hearing was published in a newspaper of general
circulation and notice thereof was served upon the State will not change the nature of the
proceedings taken. A reading of Sections 4 and 5, Rule 108 of the Rules of Court
shows that the Rules mandate two sets of notices to different potential
oppositors: one given to the persons named in the petition and another given to
other persons who are not named in the petition but nonetheless may be
considered interested or affected parties. Summons must, therefore, be served not for
the purpose of vesting the courts with jurisdiction but to comply with the requirements of
fair play and due process to afford the person concerned the opportunity to protect his
interest if he so chooses.
While there may be cases where the Court held that the failure to implead and notify
the affected or interested parties may be cured by the publication of the notice of hearing,
earnest efforts were made by petitioners in bringing to court all possible interested parties.
Such failure was likewise excused where the interested parties themselves initiated the
corrections proceedings; when there is no actual or presumptive awareness of the existence
of the interested parties; or when a party is inadvertently left out. (Republic of the
Philippines vs. Dr. Norma S. Lugsanay Uy., G.R. No. 198010, August 12, 2013)
Nature of the proceedings under R.A. 9048 and 108:
Due to RA 9048, Rule 108 ceases to be summary in nature and takes on the
character of an appropriate adversary proceeding. RA 9048 now embodies the summary
procedure, while Rule 108 provides for the adversary proceeding. (Lee v. CA, G.R. No.
118387, October 11, 2001)
4.18.1. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108, IN
RELATION TO R.A. NO. 9048
1. Births
2. Marriages
3. Deaths
4. Legal separations
5. Judgments of annulments of marriage
6. Judgments of declaration of nullity of marriage
7. Legitimations
8. Adoptions
9. Acknowledgments of natural children
10. Naturalization
11. Election, loss or recovery of citizenship
12. Civil interdiction
13. Judicial determination of filiation
14. Voluntary emancipation of a minor; and
15. Changes of names (Section 2, Rule 108)
The civil registrar and all persons who have or claim any interest which would be
affected by such correction or cancellation shall be made parties (Section 3, Rule 108).
WHAT CORRECTIONS CAN BE MADE BY RA 9048?
RA 9048 allows these corrections:
1) Correction of clerical or typographical errors in any entry in civil registry
documents, EXCEPT corrections involving the change in sex, age, nationality and status of a
person.
2) Change of a person's first name in his/her civil registry document under certain
grounds specified under the law through administrative process. (Civil Registration - Primer
for RA 9048).
What is clerical error?
A clerical or typographical error refers to an obvious mistake committed in
clerical work, either in writing, copying, transcribing, or typing an entry in the civil register
that is harmless and innocuous, such as a misspelled name or misspelled place of birth and
the like, and can be corrected or changed only by reference to other existing record or
records. (Section 2, RA 9048)

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Sexual reassignment not a ground for change of name:

A persons first name cannot be changed on the ground of sex reassignment. No law
allows the change of an entry in the birth certificate of petitioner as to sex on the ground of
sex reassignment of the applicant. Also, all entries in the birth certificate of petitioner were
correct since the sex of a person is determined at birth (Silverio vs. Republic, G.R. No.
174689, Oct. 22, 2007).
4.18.2: CORRECTIONS UNDER R.A. 10172:
a) Birth date;
b) month
c) gender except sexual reassignment;

4.18.3 CONSTITUTION OF FAMILY HOME: RULES ON CONSTITUTION OF FAMILY

HOMES, FOR PURPOSES OF EXEMPTION FROM EXECUTION
First, family residences constructed before the effectivity of the Family Code or
before August 3, 1988 must be constituted as a family home either judicially or
extrajudicially in accordance with the provisions of the Civil Code in order to be exempt from
execution;
Second, family residences constructed after the effectivity of the Family Code on
August 3, 1988 are automatically deemed to be family homes and thus exempt from
execution from the time it was constituted and lasts as long as any of its beneficiaries
actually resides therein;
Third, family residences which were not judicially or extrajudicially constituted as a
family home prior to the effectivity of the Family Code, but were existing thereafter, are
considered as family homes by operation of law and are prospectively entitled to the
benefits accorded to a family home under the Family Code.
Here, the subject property became a family residence sometime in January 1987. There was
no showing, however, that the same was judicially or extrajudicially constituted as a family
home in accordance with the provisions of the Civil Code. Still, when the Family Code
took effect on August 3, 1988, the subject property became a family home by
operation of law and was thus prospectively exempt from execution. The
petitioners were thus correct in asserting that the subject property was a family
home. (SPOUSES ARACELI OLIVA-DE MESA and ERNESTO S. DE MESA, vs. SPOUSES
CLAUDIO D. ACERO, JR. and MA. RUFINA D. ACERO,SHERIFF FELIXBERTO L.
SAMONTE and REGISTRAR ALFREDO SANTOS., G.R. No. 185064, January 16, 2012)
4.19. APPEALS IN SPECIAL PROCEEDINGS:
Generally, in the absence of statutory provisions directing otherwise, any order,
judgment or decree of the probate court capable of being enforced, or taking effect without
further order, may be appealed from; and that no action of the probate court can be
appealed from which requires a subsequent order or judgment to give it effect. (Woerner,
The American Law of Administration, Vol. 3, pp. 1860-61.)
An order directing one to appear and submit to an examination touching any property in his
possession belonging to an intestate, otherwise, he shall be committed to prison, is
APPEALABLE. (Intestate of the deceased Kaw Singco (alias Co Chi Seng) vs. Quirico
Abeto G.R. No. L-47631 April 25, 1941)
4.19.1. JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN
An interested person may appeal in special proceedings from an order or judgment
rendered by a Court of First Instance or a Juvenile and Domestic Relations Court, where such
order or judgment:
(a) Allows or disallows a will;

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(b) Determines who are the lawful heirs of a deceased person, or the distributive
share of the estate to which such person is entitled;
(c) 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;
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased
person, or the administration of a trustee or guardian, a final determination in the lower
court of the rights of the party appealing, except that no appeal shall be allowed from the
appointment of a special administrator; and
(f) 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. (Section 1, Rule 109)
4.19.2. WHEN TO APPEAL
Appeals in special proceedings necessitate a record on appeal as the original record
should remain with the trial court. Hence, the reglamentary period of thirty (30) days is
provided for the perfection of appeals in special proceedings. (Section 2, Rule 40)
4.19.3. MODES OF APPEAL
While under the concept in ordinary civil actions some of the orders stated in Sec. 1
may be considered interlocutory, the nature of special proceedings declares them as
appealable orders, as exceptions to the provisions of Sec.2, Rule 41. Thus:
a) Ordinary appeal. The appeal to the CA in cases decided by the RTC in the
exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and serving a copy thereof upon
the adverse party. No record on appeal shall be required except in special proceedings and
other cases of multiple or separate appeals where the law or the Rules so require. In such
cases, the record on appeal shall be filed and served in like manner.
b) Petition for review. The appeal to the CA in cases decided by the RTC in the
exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule
42.
c) Petition for review on certiorari. In all cases where only questions of law are
raised or involved, the appeal shall be to the SC by petition for review on certiorari in
accordance with Rule 45.
4.19.4. RULE ON ADVANCE DISTRIBUTION:
Notwithstanding a pending controversy or appeal in proceedings to settle the estate
of a decedent, the court may permit the part of the estate not affected by the controversy or
appeal to be distributed among the heirs or legatees, in accordance with the Rule 90.
(Section 2, Rule 109)

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