SPECIAL PROCEEDINGS AT THE UNIVERSITY OF SANTO TOMAS

SPECIAL PROCEDINGS
IV. SPECIAL PROCEEDINGS
A: It is a remedy by which a party seeks to establish

a status, a right or a particular fact. (Sec. 3(c), Rule
1)
Q: What is Special Proceeding?
NOTE: It is a proceeding in rem.
Q: Distinguish an Ordinary action and Special Civil Action from a special proceeding.
A:
Ordinary Action
Special Proceeding
Special Civil Action
To protect or enforce a right or

prevent or redress a wrong
Involve 2 or more parties plaintiff
and defendant
Governed by ordinary rules,
supplemented by special rules
Involves the establishment of a

right, status, or fact
May involve only one party only
petitioner
Governed by special rules,
supplemented by ordinary rules
Civil Action subject to specific

rules.
Involves two or more parties
Initiated by a complaint, and

parties respond through an answer
Initiated by a petition and parties

respond through an opposition
Heard by courts of general

jurisdiction
Issues or disputes are stated in the
pleadings of the parties
Heard by
jurisdiction
Adversarial
Not adversarial
Based on a cause of action
Not based on a cause of action

(except habeas Corpus)
courts
of
Ordinary rules apply primarily but

subject to specific rules
Some are initiated by complaint,
while some are initiated by
petition
limited
Issues are determined by law
Some special civil action have no

cause of action
Q: What are the subject matters of special proceedings?

A:
Special Proceeding
Rules 73-90
Settlement of Estate
of Deceased Persons
Jurisdiction
Venue
RTC- Gross value of the estate

exceeds
400,000/
500,000
(Manila)
MTC- Gross value of the estate
does not exceed 400,000/
500,000
1.
NOTE: MTC jurisdiction is exclusive

of interest, damages of whatever
kind, attorneys fees, litigation
expenses and costs
2.
If inhabitant (resident) of the

Philippines (whether citizen
or alien)- Court of the
province/ city where the
deceased resides at the time
of death
Inhabitant (non- resident) of
foreign country- court of any
province/ city wherein he had
estate
1.
Rule 91
Escheat
RTC
Ordinary escheat proceedings:

RTC
a. If resident- place where the
deceased last resided
b.If non-resident- place where
he had estate
2. Reversion of land to the State for
violation of the Consitution/
Laws- RTC where the land lies in
whole or in part
3. Unclaimed deposits (for 10
years)- RTC of the city/ province
where the bank is located
NOTE: All banks located in 1 province
where the court is located may be
made party- defendant in 1 action.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
163
UST GOLDEN NOTES 2011
Rule 98
Trustees
Rule 101
Hospitalization
insane person
Rule 103
Change of name
Rule 108
Rule 107
A.M. No.
00-8-10-SC
Rule 104
RA 9048
Rules 9297; A.M.

No. 03-0205-SC
A.M. No.
02-06-02-SC
A.M. No.
02-6-02-SC
A.M. No.
02-6-02-SC
of
RTC
Cancellation
or
correction of entries
in the civil registry
Declaration
of
absence and death
Corporate
rehabilitation
Voluntary dissolution
of corporation
Administrative
correction
of
entry/change of first
name or nickname
RTC
RTC
RTC
SEC
Local
civil
general
registry/Consul
Family Court In case of minors

RTC In cases other than minors
Guardianship
Domestic Adoption
Rescission
Adoption
Inter-country
Adoption
RTC
of
Where the will was allowed or

where the property or portion
thereof affected by the trust is
situated
Where such insane person may be
found
Where petitioner resides for 3
years prior to the filing of the
petition
Where the corresponding
registry is located
civil
Where the absentee resided before

his disappearance
Where principal office of the
corporation is situated
Where
principal
office
of
corporation is situated
Local civil registry office where the
record is kept/where the interested
party is presently residing or
domiciled
1. If resident- place where
minor/ incompetent resides
2. If non-resident- place where
minor/
incompetent
has
property
Family Court
Where the adopter resides
Family Court
Where the adoptee resides
Family Court or the InterCountry Adoption Board
Where the adopter resides
Rule 99
Custody of Minors
Family Court
Where petitioner resides or where

the minor may be found
Rule 105
Judicial Approval of
Voluntary
Recognition of Minor
Natural Children
Family Court
Where the child resides
Family
Code
Summary
Proceedings
1.
2.
R.A. 8369
3.
Rule 102
164
RTC-Gross value of the estate

exceeds 400,000/500,000
MTC- does not exceed 400,000/
500,000
Petitions
on
Foster care and
Temporary
Custody
Declaration
of
Nullity
of
Marriage
Cases
of
Domestic
Violence Against
Women
and
Children
Habeas Corpus
Where the petitioner resides or

where the child resides if it involves
minors
Actions mentioned in the Family Courts Act
Family Court
Family Court
Where petitioner or respondent

has been residing for at least 6
months prior to the date of filing
In
case
of
non-resident
respondent, where he may be
found at the election of the
petitioner
SC, CA, RTC, MTC in the province

or city in case there is no RTC
judge; SB only in aid of its
appellate jurisdiction
Where the aggrieved party is

detained (RTC)
REMEDIAL LAW TEAM:

ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
SPECIAL PROCEDINGS
A.M. No.
03-04-04SC
Habeas Corpus in
Relation to Custody of
Minors
Family Court, CA, SC
A.M. No.
07-9-12-SC
Writ of Amparo
RTC, SB, CA or SC or any justice

thereof
A.M. No.
08-1-16-SC
Writ of habeas data
RTC, SB, CA or SC or any justice

thereof
A.M. No.
09-6-8-SC
Writ of Kalikasan
SC or any stations of CA
A.M.
No.02-1110-SC
A.M. No.
02-11-11SC
Declaration of nullity
of void
marriage/Annulment
of marriage
Legal Separation
Where the petitioner resides or

where the minor may be found
Where the threat, act or omission
was committed or any of its
elements occurred
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
Where the unlawful act, omission
or threat was committed
Family Court

In
case
of
non-resident
petitioner
Family Court

In
case
of
non-resident
petitioner
Q: What is the publication requirement in special proceedings?

A:
Special Proceeding
Administrative change of first name or nickname
Corporate rehabilitation
Settlement of estate of deceased persons
Judicial change of name
Judicial cancellation or correction of entries in the civil
registry
Domestic adoption
Inter-country adoption
Voluntary dissolution of corporation
(Except shortening of corporate term)
Declaration of absence
Escheat
Guardianship
Trustees
Custody of minors
Hospitalization of insane person
Rescission of adoption
Administrative cancellation or correction of entries
Habeas corpus
Writ of amparo
Writ of habeas data
Writ of kalikasan
1. Petitions on foster care and temporary custody
2. Cases of domestic violence against women and
Publication of Order of Hearing

Once a week for 2 consecutive weeks

Note: The declaration of absence shall not take effect
until six (6) months after its publication in a newspaper
of general circulation.
None

165

children
Summary proceedings
Note: In declaration of nullity or annulment of marriage or legal separation, service of summons may be through
publication once a week for 2 consecutive weeks.
Q: Who should be notified in special proceedings?

A:
Special proceeding
Settlement of estate of deceased persons
Trustees
Hospitalization of insane person
Judicial change of name
Judicial cancellation or correction of entries in the civil
registry
Declaration of absence and death
Corporate rehabilitation
Voluntary dissolution of corporation
Administrative correction of entry/ change of first name
or nickname
Guardianship
Domestic Adoption
Rescission of Adoption
Inter-country Adoption
Custody of Minors
Habeas corpus
Writ of amparo
Writ of habeas data
Writ of kalikasan
Summary proceedings
1. Petitions on foster care and temporary custody
2. Cases of domestic violence against women and
children
Declaration of nullity of void marriage / Annulment of
marriage
Legal separation
Escheat
Interested parties
The minor if above 14 years of age/incompetent
himself/Interested parties on the property of the ward.
General or special notice may be given.
Biological parents/Solicitor General
Adopter
Biological parents, if any/guardian
Biological parents/guardian if any
To the person to which the writ is directed
Respondent
Respondent
Respondent
Respondent and interested party
Solicitor General/Public Prosecutor
City/Provincial Prosecutor/ Respondent
City/Provincial prosecutor/ Respondent
None
A. SETTLEMENT OF ESTATE OF DECEASED

PERSONS, VENUE AND PROCESSES
1. WHICH COURT HAS JURISDICTION
Q: Which court has jurisdiction over the estate of
the deceased?
A:
Regional Trial Court
Gross value of the estate
exceeds 500,000 (within
Metro Manila) or 400,000
(outside Metro Manila)
166
To whom notice must be given

Executor/administrator/any interested party
All persons interested on the trust
On the person alleged to be insane and to the one having
charge of him or any of his relatives
Interested parties/Solicitor General
Persons named in the petition/Solicitor General/Civil
Registrar impleaded as respondent
Heirs/legatees/devisees/creditors/other
interested
persons
Creditors/Debtors
Creditors
Metropolitan Trial Court
Q: State the rule on venue in judicial settlement of

estate of deceased persons.
A:
Resident
Court of the province/city
where the deceased
resided at the time of
death, whether a citizen
or alien
Non-Resident
Court of the province/city
wherein he had the
estate

does not exceed
500,000/400,00
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
2. VENUE IN JUDICIAL SETTLEMENT OF ESTATE
v. Santiago, L- 1723, May 30, 1949); or by filing

another petition for settlement in a proper
court of concurrent venue (De Borja v. Tan, 77
Phil 872).
Q: What is venue?
A: Under the Rules of Court, the province where the
estate of the deceased shall be settled (Cuenco v.
CA, G.R. No. L-24742, October 26, 1973)
Q: Is venue waivable?
A: Yes. Wrong venue is a waivable procedural
defect, and such waiver may occur by laches where
a party had been served notice of the filing of the
probate petition for a year and allowed the
proceedings to continue for such time before filing
a motion to dismiss.
Note: Jurisdiction under Rule 73 does not relate to
jurisdiction per se but to venue. Hence institution in
the court where the decedent is neither an inhabitant
nor had his estate may be waived (Uriarte v. CFI, G.R.
Nos. L-21938-39, May 29, 1970).
Q: What constitutes residence?

A: It is the personal, actual, physical habitation, his
actual residence or place of abode (Fule v. CA, G.R.
No. L-40502, Nov. 29, 1976) and not his permanent
legal residence or domicile.
Note: MTC jurisdiction is exclusive of interest,
damages of whatever kind, attorneys fees, litigation
expenses and costs.
Q: What is the remedy if Venue is improperly laid?

A:
GR: ORDINARY APPEAL should be filed, not
certiorari or mandamus.
XPN: CERTIORARI OR MANDAMUS should be
filed when want of jurisdiction appear on the
record of the case.
Q: What is
Jurisdiction?
the
Principle
of
Preferential
A:
GR: The court first taking cognizance of the
settlement of the estate of the decedent shall
exercise jurisdiction to the exclusion of all
other courts (Sec. 1 of Rule 73.)
The probate court acquires jurisdiction from
the moment the petition for the settlement of
estate is filed with said court. It cannot be
divested of such jurisdiction by the subsequent
acts of the parties as by entering into
extrajudicial partition of the estate (Sandoval
XPN: Estoppel by Laches

Note: The rule applies to both testate and intestate
proceedings.
3. EXTENT OF JURISDICTION OF PROBATE COURT

Q: May probate courts determine issues of
ownership in a proceeding for the settlement of
estate of decedent? Explain.
A:
GR: No, because probate courts are courts of
limited jurisdiction.
XPNS:
1. Provisionally, for the sole purpose of
including the property in the inventory,
without
prejudice
to
its
final
determination in a separate action;
2. When all the parties are heirs of the
decedent and they agreed to submit the
issue of ownership to the probate court,
provided that no rights of third persons
are prejudiced;
3. If the question is one of collation or
advancement; or
4. If the parties consent to the assumption
of jurisdiction by the probate court and
no rights of third parties are prejudiced.
(Agpalo,
Handbook
on
Special
Proceedings, pp. 10-12, 2003 ed.)
Q: The probate court ordered the inclusion of a
parcel of land registered in the name of Richard in
the inventory of the properties of the deceased
Anna. Richard opposed the inclusion arguing that
the probate court cannot determine the issue of
the ownership of the parcel of land inasmuch as
the same was registered in his name. Is Richard
correct?
A: Yes. In probate proceedings, if a property
covered by Torrens title is involved, the
presumptive conclusiveness of such title should be
given due weight, and in the absence of strong
compelling evidence to the contrary, the holder
thereof should be considered as the owner of the
property in controversy until his title is nullified or
modified in an appropriate ordinary action,
particularly, when as in the case at bar, possession
of the property itself is in the persons named in the
title (Luy Lim v. CA, G.R. No. 124715, Jan. 24, 2000).

167

Q: What may the court do in the exercise of its
probate jurisdiction?
A: It may issue warrants and processes to compel
the attendance of witnesses or carry into effect
their orders and judgments and all other powers
granted them by law. (Sec. 3, Rule 73)
Q: May the probate court issue a writ of
execution?
A:
GR: No, 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.
XPNS:
1. To satisfy the contributive share of the
devisees, legatees and heirs when the
latter had entered prior possession over
the estate (Sec. 6, Rule 88);
2. To enforce payment of the expenses of
partition (Sec. 3, Rule 90); and
3. To satisfy the costs when a person is cited
for examination in probate proceedings
(Sec. 13, Rule 142; De Valera v. Hon.
Ofilada, G.R. No. L-27526, Sept. 19, 1974).
4. To satisfy the claim in a summary
proceedings of creditors or heirs who
appear
within
two
years
from
distribution.
Q: Where should the estate be settled if the

marriage is dissolved by death of either spouse or
both?
A: When the marriage is dissolved by the death of
the husband or wife, the community property shall
be inventoried, administered and liquidated, and
the debts thereof paid, in the testate or intestate
proceedings of the deceased spouse. If both
spouses have died, the conjugal partnership shall be
liquidated in the testate or intestate proceedings of
either. (Sec. 2, Rule 73)
Note: If separate proceedings have been instituted for
each estate, both proceedings may be consolidated if
they were filed in the same court.
The rule on consolidation in settlement proceedings

for husband and wife exclusively applies to them. It
does not apply to siblings, parents and child or
other relatives no matter how close. (Benigno v. de
la Pea, G.R. No. L-38036, Oct. 15, 1932)
Notes:
1.
2.
3.
Q: Can a declaration of heirship be made in an

independent action?
A:
1.
2.
168
If the special proceedings are pending, or

if there are no special proceedings filed
but there is a need to file one, then the
determination of heirship should be
raised and settled in said special
proceedings.
If the special proceeding had been
instituted but had been finally closed and
terminated, or if a putative heir has lost
the right to have himself declared in the
special proceedings as co-heir and he can
no longer ask for its re-opening, then an
ordinary civil action can be filed for his
declaration as heir in order to bring about
the annulment of the partition or
distribution or adjudication of properties
belonging to the estate of the deceased
(Portugal and Portugal, Jr. v. PortugalBeltran, G.R. No. 155555, Aug. 16, 2005).
4.
The jurisdiction of a court as well as the

concomitant nature of the action is
determined by the averments in the
complaint and not by the defenses
contained in the answer. (Vda. De Manalo v.
CA, 349 SCRA 135).
The residence of the deceased or the
location of his estate is not an element of
jurisdiction over the subject matter but
merely of venue (Cuenca v. CA 53 SCRA 360,
1973.)
Testate proceedings take precedence over
intestate proceedings for the same estate. If
in the course of the intestate proceedings, it
is found that the decedent had left a last
will, proceedings for the probate of the
latter should replace the intestate
proceedings even if at that state, an
administrator had already been appointed
(Uriarte v. CFI, 33 SCRA 252, 1970.)
Mere discovery of a document purporting to
be the last will and testament of decedent
after appointment of an administrator does
not ipso facto nullify the letters of
administration already issued until the will
has been proven and allowed (Advincula v.
Teodoro, 99 Phil 413).
4. POWERS AND DUTIES OF PROBATE COURT

Q: What are the powers and duties of a Probate
Court?
A: In probate proceedings, the court:
1. Orders the probate of the will of the
decedent
2. Grants letters administration
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
3. Supervises and controls all acts of
administration
4. Hears and approves claims against the
estate of the deceased
5. Orders payment of lawful debts
6. Authorizes sale, mortgage or any
encumbrance of real estate
7. Orders the payment of taxes and other
charges
8. Directs the delivery of the estate to those
entitled thereto.
Allowed only in intestate

succession
There must be no
outstanding debts of the
estate at the time of the
settlement
Resorted at the instance
and by agreement of all
heirs
Allowed in both testate

and intestate succession
Available even if there
are debts, it is the court
which will make provision
for its payment
May be instituted by any
interested party even a
creditor of the estate
without the consent of all
the heirs
Amount of bond is to be
determined by the court
Note: The court acts as a trustee and as such must

jealously guard the estate and see to it that it is wisely
and economically administered, not dissipated.
Amount of bond is equal

to the value of personal
property
Q: What are the powers and duties of a probate

court?
Q: Distinguish the procedure in extrajudicial

settlement from summary settlement
A:
A:
To pass upon the issue regarding:
1. Validity of the will (i.e. formalities
required by law)
2. Distribute shares
3. Determine who are the legal heirs
4. Issue warrants and processes to secure
attendance of witnesses
5. Determine and rule upon issues relating
to settlement of the estate, such as
administration,
liquidation,
and
distribution of the estate
6. Determine the following:
a. Heirs of the decedent;
b. Recognition of natural child;
c. Validity of disinheritance effected by
testator;
d. Status of a woman who claims to be
the lawful wife of the decedent ;
e. Validity if waiver of hereditary heirs;
f. Status of each heir;
g. Whatever property in the inventory is
conjugal or exclusive property of
deceased spouse; or
h. Matters incidental or collateral to the
settlement and distribution of the
estate.
B.
A. EXTRAJUDICIAL
SETTLEMENT
AGREEMENT BETWEEN THE HEIRS
BY
Division of estate made through a public

instrument or affidavit of adjudication
Filing of the public instrument or affidavit of
adjudication with the proper Register of Deeds
Publication of notice of the fact of extrajudicial
settlement once a week for three consecutive
weeks in a newspaper of general circulation
Personal property- file a bond equivalent to its

amount.
Real property- subject to a lien in favor of the
creditors, heirs or other persons for the full period
of 2 years from such distribution and such lien
cannot be substituted by a bond
SUMMARY SETTLEMENT OF ESTATES
1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT

BETWEEN HEIRS, WHEN ALLOWED
EXTRA JUDICIAL
SETTLEMENT BY
AGREEMENT BETWEEN
HEIRS
No court intervention
The value of the estate is
immaterial
SUMMARY SETTLEMENT
OF ESTATE OF SMALL
VALUE
Requires summary
adjudication
must not exceed P10,000

169

B. SUMMARY SETTLEMENT OF ESTATE OF
SMALL VALUE
Petition for summary settlement to be filed in the
MTC with an allegation that the gross value of the
estate, whether he died testate or intestate does
not exceed P10,000
Publication of notice once a week for 3 consecutive

weeks; court may likewise order that notice be
given to persons as the court may direct
Note: While the Rules of Court provide that the

decedent must not have left any debts, it is sufficient if
any debts he may have left have been paid at the time
the extrajudicial settlement is entered into (Guico v.
Bautista, G.R. No. L-14921, Dec. 31, 1960). It is a
disputable presumption that the decedent left no
debts if no creditor files a petition for letters of
administration within two years after the death of the
decedent.
Q: What is a bond?
Hearing to be held not less than 1 month nor more
than 3 months from the date of last publication of
notice
The court proceeds summarily without the

necessity of appointing an executor or
administrator; and to make orders as may be
necessary
The court may also require a bond in an amount
fixed by the court (not value of personal property)
conditioned upon payment of just claims under
Section 4
Q: When is extra judicial settlement by agreement

between the heirs allowed? (Substantial
Requisites)
When the decedent:
2.
Left no will and no debts; and the heirs

are all of age; and
Of the minors are represented by their
judicial or legal representatives duly
authorized for the purpose.
Q: What are the requisites before an extrajudicial

settlement of estate could be resorted as evidence
of its validity? (Procedural Requisites)
A:
1.
2.
3.
4.
170
Note: The amount of bond required under Section 2 is

determined by the COURT whereas in Section 1 the
amount is EQUAL TO THE VALUE OF THE PERSONAL
PROPERTY as established by adjudication.
Q: When is a bond required to be filed in

extrajudicial settlement of estate?
A: When personal property is involved, a bond is
required. On the other hand, if it is a real property,
it is subject to a lien in favor of a creditor for 2 years
from distribution and such lien cannot be
substituted by a bond. (Sec. 1, Rule 74)
Note: The same provision on the bond and lien also
applies in summary settlement of estate. (Sec. 2,
Rule 74)
A:
1.
A: It is the value of the personal property certified

by the parties under oath and conditioned upon
payment of just claims under Section 4, Rule 74.
Settlement is made in a public instrument

or by affidavit of adjudication in the case
of a sole heir;
Q: Is a public instrument necessary for the validity

of the extrajudicial settlement?
A: No, the requirement of public instrument is not
constitutive of the validity but is merely evidentiary
in nature (Hernandez v. Andal, G.R. No. L-273, Mar.
23, 1947). Even a private instrument, oral
agreement of partition or compromise agreement
entered into without previous authority from the
court is valid. However, reformation of the
instrument may be compelled.
Note: Public instrument is required in transfer and
registration of title to the heirs.
Note: In case of disagreement of heirs, they

may state their oppositions in an ordinary
action of partition.
Q: What is the effect of an extra-judicial partition

executed without the knowledge and consent of
the other co-heirs?
Filed with the Register of Deeds;

Fact of settlement must be published in a
newspaper of general circulation once a
week for 3 consecutive weeks; and
Bond filed equivalent to the value of
personal property. (Sec. 1, Rule 74)
A: It shall not prejudice the co-heir who had no

knowledge nor consented to the same. He shall
have the right to vindicate his inheritance. Such heir
or such other person deprived of his lawful
participation payable in money may compel the
settlement of the estate in courts for the purpose
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
of satisfying such lawful participation. (Sec. 4, Rule
74)
3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE

HEIR
Q: Why is publication of the extrajudicial

settlement necessary?
Q: What is an Affidavit of Self-Adjudication by sole

heir?
A: To notify and bind the whole world of the

extrajudicial settlement and give the concerned
parties a chance to come forward and challenge the
same (Sec. 1, Rule 74).
A: It is an affidavit required by Sec.1, Rule 74 to be

executed by the sole heir or a deceased person in
adjudicating to himself the entire estate left by the
decedent.
Note: Publication alone does not suffice to bind the

excluded heirs to the extrajudicial settlement
unless he did not participate in the proceedings.
4. SUMMARY SETTLEMENT OF ESTATES OF SMALL

VALUE
Q: What is the effect if the provisions on notice or

participation requirement under Sec. 1, Rule 74
have been strictly complied with?
A: It bars distributees or heirs from objecting to an
extra-judicial partition after the two-year
prescriptive period to question such partition. (Sec.
4, Rule 74)
2. TWO-YEAR PRESCRIPTIVE PERIOD
Q: When does the two year period rule apply?
A: After the expiration of two years from the
extrajudicial partition, distributees or heirs are
barred from objecting to an extrajudicial partition.
The two year prescriptive period applies only:
1.
2.
To persons who have participated or

taken part or had notice of the
extrajudicial partition; and
When all the persons or heirs of the
decedent have taken part in the
extrajudicial
settlement
or
are
represented by themselves or through
their guardians.
Note: It is only a bar against the parties who had not

taken part in the extrajudicial proceedings, but not
against third persons not parties thereto. (Herrera,
Remedial Law III-A, 39)
Q: What is summary settlement of estate?

A: It is a judicial proceeding, without appointment
of executor or administrator, and without delay, the
competent court summarily proceeds to estimate
the value of estate of the decedent; allow his will if
any; declare his heirs, devisees, and legatees;
distribute his net estate among them, who shall
thereupon be entitled to receive and enter into the
possession of the parts of the estate so awarded to
them, respectively.
Q: Summary settlement of estates of small value,
when is it allowed?
A: Only when gross estate does not exceed
P10,000. Amount is jurisdictional. (Sec. 2, Rule 74)
Notes:
1.
2.
3.
4.
5.
6.
Q: Does the two year period apply for a claim of

minor or incapacitated person?
A: If on the date of the expiration of the period of
two years prescribed, 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 year after such disability is
removed. (Sec. 5, Rule 74)
7.
8.
Amount is jurisdictional;
Summary settlement of estate of small value
is allowed in both testate and intestate
estates;
Available even if there are debts as the court
will make provisions for the payment
thereof.
In accordance with B.P. Blg. 129, the
jurisdiction is vested to the Municipal Trial
Courts.
Instituted by any interested party and even
by a dredirtor of the estate, without the
consent of all the heirs.
The date for hearing, shall be set by court
not less than 1 month nor more than 3
months from date of publication of last
notice and the order of hearing be published
once a week for 3 consecutive weeks in a
newspaper of general circulation.
Notice shall be served upon such interested
persons as the court may direct.
Bond in an amount fixed by the court (not
value of the personal property) conditioned
upon payment of just claims under sec. 4.

171

Q: When can settlement of estates in courts be
compelled?
A:
1.
2.
3.
The existence of debts against the estate;

If there is undue deprivation of lawful
participation payable in money. (Sec. 4,
Rule 74)
If there is undue deprivation of lawful

participation in the estate;
5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE
Q: What are the remedies of the aggrieved party in summary or extrajudicial settlement of the estate?
A:
CLAIM AGAINST THE BOND OR
REAL ESTATE
GROUNDS: (Section 4, Rule 74)

a. If there is undue deprivation of lawful participation in the estate;
b. Existence of debts against the estate.
Should be brought within 2 years after settlement and distribution of the estate
COMPEL THE SETTLEMENT

ESTATE IN COURTS
ACTION FOR RESCISSION
OF
ACTION FOR RECONVEYANCE OF

REAL PROPERTY
REOPENING BY INTERVENTION IN
SUMMARY SETTLEMENT
PETITION FOR RELIEF (SUMMARY

SETTLEMENT)
ACTION TO ANNUL A DEED OF

EXTRAJUDICIAL SETTLEMENT OR
JUDGMENT
IN
SUMMARY
SETTLEMENT
ORDINARY ACTION BUT NOT
AGAINST THE BOND
Should be brought within 2 years after settlement and distribution of the estate
It must be availed of within 5 years from the time the right of action accrues.
(Art. 1149, NCC)
Also applicable in judicial proceedings
GR: It is based on an implied or constructive trust which prescribes in 10 years
from the date of registration or date of issuance of certificate of title or from
actual discovery of fraud if the registration was made in bad faith.
XPN: If the plaintiff is in possession of the property and did not pass to innocent
purchaser for value and good faith, action is imprescriptible. (Marquez v. CA,
G.R. No. 125715, Dec. 29, 1998) Also applicable in judicial proceedings.
Upon motion of a person who either:
a. Has a legal interest in the matter in litigation;
b. Has such legal interest in the success of either of the parties, or an interest
against both; or
c. Is so situated as to be adversely affected by the distribution of property in
the custody of the court or of an officer.
Note: May be availed of after judgment but before its finality or appeal by the
aggrieved party.
On grounds of fraud, accident, mistake, and excusable negligence within 60 days
after petitioner learns of the judgment, final order or other proceeding to be set
aside, and not more than 6 months after such judgment or final order was
entered. (Rule 38.) Also applicable in judicial proceedings.
On the ground of fraud which should be filed within 4 years from the discovery
of fraud.
If the order of closure has already become final and executory, the heir must file
an independent civil action of accion reinvidicatoria to recover his deprived
share.
Note: It must be brought within 10 years from the time the right of action
accrues. [Art. 1144(c)]
Also applicable in judicial proceedings.
After the lapse of two years an ordinary action may be instituted against the
distributees within the statute of limitations but not against the bond.
172
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
C. PRODUCTION AND PROBATE OF WILL
1. NATURE OF PROBATE PROCEEDING
2.
Q: What is probate?
A: Probate is the act of proving before a competent
court the due execution of a will by a person
possessed of testamentary capacity, as well as the
approval thereof by said court, (also known as
Allowance of Will).
Note: Principle does not apply where the

meat of the controversy is not the
intrinsic validity of the will.
Q: Why is probate necessary?

A: To settle all questions concerning the capacity of
the testator and the proper execution of his will,
irrespective of whether its provisions are valid and
enforceable. (Fernandez v. Dimagiba, G.R. No. L23638, Oct. 12, 1967)
Q: What is the nature of a probate proceeding?
A:
1. IN REM- It is binding upon the whole world.
NOTE: The decree of probate is conclusive with respect

to the due execution of the will and it cannot be
impugned on any of the grounds authorized by law,
except by fraud, in any separate or independent action
or proceeding.
2. WHO MAY PETITION FOR PROBATE

Q: Who may file petition for allowance of will?
A:
1.
2.
2. MANDATORY- No will shall pass either real or

personal property unless it is proved and allowed in
the proper court.
3.
4.
3. IMPRESCRIPTIBLE- because of the public policy
to obey the will of the testator
5.
A:
1.
A:
XPNS: Principle of practical considerations

wherein the court may pass upon the intrinsic
validity of the will:
1.
Testator himself during his lifetime (Sec.

1, Rule 76); or
Any creditor as preparatory step for
filing of his claim therein.
Q: Who are the people entitled to notice in a

probate hearing?
Q: Does the probate court look into the intrinsic

validity of the will?
GR: The jurisdiction of probate court is limited

to the examination and resolution of the
extrinsic validity of a will.
Executor (Sec. 1, Rule 76);

Devisee or legatee named in the will (Sec.
1, Rule 76);
Person interested in the estate; e.g. heirs
Note: 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 v. Ramagosa,
G.R. No. L-23135, Dec. 26, 1967)
Note: However, a will may be sustained on the basis of

Article 1080 of the NCC which states that, if the
testator should make a partition of his property by an
act intervivos or by will, such partition shall stand in so
far as it does not prejudice the legitime of the forced
heir. (Mang- Oy v. CA, L-27421, 1986)
4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the

probate of the will is mandatory. The presentation
and probate of the will is required by public policy.
It involves public interest. (Fernandez v. Dimagiba,
L- 23638, 1967)
anxiety; as in the case of absolute

preterition (Nuguid v. Nuguid, G.R. No. L23445, June 23, 1966).
Where the entire or all testamentary
dispositions are void and where the
defect is apparent on its face
(Nepomuceno v. CA, G.R. No. L-62952,
Oct. 9, 1985).
2.
3.
4.
Designated or known heirs, legatees and

devisees of the testator resident in the
Philippines at their places of residence, at
least 20 days before the hearing, if such
places of residence be known.
Person named executor, if he not the
petitioner.
To any person named as co-executor not
petitioning, if their places of residence be
known.
If the testator asks for the allowance of
his own will, notice shall be sent only to
his compulsory heirs. (Sec. 4, Rule 76)
If the case where to be remanded for

probate of the will, it will result to waste
of time, effort, expense, plus added

173

D.
ALLOWANCE OR DISALLOWANCE OF A WILL
1. CONTENTS OF PETITION FOR ALLOWANCE FOR

WILL
Q: What are the contents of a petition for
allowance of a will?
Holographic
will
A:
1. Jurisdictional facts:
I. death of the testator and
II. his residence at the time of his death
III. if non- resident, the province where the
estate was left
2. The names, ages and residences of the
heirs, legatees and devisees of the testator
or decedent.
3. The probable value and character of the
property of the estate.
4. The name of the persons for whom letters
are prayed.
5. The name of the person having custody of
the will if it has not been delivered to the
court.
NOTE: But no defect in the petition shall render void
the allowance of the will or the issuance of letters
testamentary or of administration with the will
annexed.
Q: What is the effect of the allowance of a will?

A: The judgment or decree of the court allowing the
will is:
1.
2.
Conclusive as to its extrinsic validity;

Not subject to collateral attack and it
stands as final, if not modified, set aside,
or revoked by a direct proceeding, or
reversed on appeal by a higher court; and
3. Conclusive on the whole world. (Yuseco v.
CA, G.R. Nos. L-40719-21, Dec. 29, 1975)
Q: How should a will be proved?
A:
Uncontested
Notarial
will
174
The court may

grant allowance
thereof on the
testimony of one
of the
subscribing
witnesses only, if
such witness
testifies that the
will was
executed as is
required by law.
(Sec. 5, Rule 76)
Contested
At least one
witness who
knows the
handwriting and
signature of the
testator explicitly
declares that the
will and
signature are in
the handwriting
of the testator.
(Sec. 5, Rule 76)
The will shall be

allowed if at least
three witnesses
who know the
handwriting
of
the
testator
explicitly declare
that the will and
signature are in
the handwriting
of the testator.
(Sec. 11, Rule 76)
Note: At the hearing, compliance with publication and

notice must first be shown before the introduction of
testimony in support of the will.
In the absence of competent witness, and if the

court deems it necessary, expert testimony may be
resorted to. (Sec. 5, Rule 76)
Q: What is the remedy if none of the subscribing
witnesses resides in the province where probate is
being conducted?
A: A motion for taking of deposition of one or more
of them. (Sec. 7, Rule 76)
Note: Court may also authorize photographic copy of
the will to be made and to be presented to the witness
on his examination, who may be asked questions with
respect to matters pertaining to the will. (Sec. 7, Rule
76)
Q: What are the instances when the court may

admit the testimony of witnesses other than the
subscribing witnesses?
A:
1.
2.
The subscribing witnesses are dead or

insane; or
None of them resides in the Philippines.
(Sec. 8, Rule 76)
Q: What matters shall be testified on by the other

witnesses?
A:
All the subscribing

witnesses and the
notary
public
must testify as to
due execution and
attestation of the
will. (Sec. 11, Rule
76)
1.
2.
The sanity of the testator; and

Due execution of the will.
Note: The court may admit proof of handwriting of the

testator and of the subscribing witnesses, or any of
them. (Sec. 8, Rule 76)
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
Q: What proof is necessary if the testator himself
files the petition for probate of his holographic will
and no contest is filed?
2.
3.
A: The fact that he affirms that the holographic will
and the signature are in his own handwriting shall
be sufficient evidence of the genuineness and due
execution thereof. (Sec. 12, Rule 76)
4.
Q: What if the holographic will is contested?
5.
A: If the holographic will is contested, the burden of

disproving the genuiness and due execution thereof
shall be on the contestant. The testator may, in his
turn, present such additional proof as may be
necessary to rebut the evidence for the contestant.
(Sec. 12, Rule 76)
Q: What is the rule on proof of lost or destroyed
will?
A: If notarial will, it may be proven by a photostatic
or xerox copy of the will coupled with the
testimonies of the attesting witnesses.
If holographic will, a photostatic copy or
exerox copy of the lost will would not suffice.
But if there are no other copies available then
a photostatic or xerox copy would suffice to
serve as a comparison to the standard
writings of the testator. No testimonies of
witnesses is allowed because the will was
made entirely by the testator himself. (Bonilla
vs. Aranz, G.R. No. L-58509, Dec. 7, 1982)
Q: What are the requisites for allowance of a lost
or destroyed will?
A: No will shall be proved as a lost or destroyed will
unless:
1.
2.
3.
Its execution and validity of the same

must be established;
It must have been in existence at the time
of the death of the testator, or is shown
to have been fraudulently or accidentally
destroyed during the lifetime of the
testator without his knowledge; and
Its provisions must be clearly and
distinctly proved by at least 2 credible
witnesses (Sec. 6)
2. GROUNDS FOR DISALLOWING A WILL

Q: What are the grounds for disallowance of will?
A:
1.
If not executed and attested as required

by law;
If the testator was insane, or otherwise

mentally incapable to make a will, at the
time of its execution;
If it was executed under duress, influence
of fear, or threats;
If it was procured by undue and improper
pressure or influence, on the part of the
beneficiary, or of some other person for
his benefit; or
If the signature of the testator was
procured by fraud or trick, and he did not
intend that the instrument should be his
will at the time of fixing his signature
thereto. (Sec. 9, Rule 76)
Q: What is the Substantial Compliance Rule?

A: If the will has been executed in substantial
compliance with the formalities of the law, and the
possibility of bad faith and farud is obviated, said
will should be admitted to probate (Art. 809, New
Civil Code).
3. REPROBATE; REQUISITES BEFORE WILL PROVED
OUTSIDE ALLOWED IN THE PHILIPPINES; EFFECT
Q: What is reprobate?
A: It is a special proceeding to establish the validity
of a will proved in a foreign country.
Q: What are the requisites before a will proven
outside the Philippines be allowed here?
A:
1.
2.
3.
4.
5.
6.
7.
The testator was domiciled in a foreign

country;
The will has been admitted to probate in
such country;
The foreign court is, under the laws of
said foreign country, a probate court with
jurisdiction over the proceedings;
Proof of compliance with the law on
probate procedure in said foreign
country;
The legal requirements in said foreign
country for the valid execution of the will
have been complied with;
Filing a petition in the Philippines with
copy of the will and of its decree of
allowance; and
Notice and hearing. (PCIB v. Escolin, G.R.
No. 76714, June 2, 1994)
Note: Under the doctrine of processual presumption,

there must be evidence to prove the existence of
foreign law, otherwise the court should presume that
the law of the foreign country is the same as Philippine
laws.

175

Q: What are the effects of probate?
2.
3.
A:
1.
2.
3.
The will shall have the same effect as if

originally proved and allowed in the
Philippines (Sec. 3, Rule 77);
Letters testamentary or administration
with a will annexed shall extend to all
estates of the testator in the Philippines
(Sec. 4, Rule 77); and
Such estate, after the payment of just
debts and expenses of administration,
shall be disposed of according to the will,
so far as such will, may operate upon it,
and the residue, if any, shall be disposed
of as provided by law in cases of estates
in the Philippines belonging to persons
who are inhabitants of another country
(Sec. 4, Rule 77).
Q: What authority is issued to the person who

administers the estate?
A:
1.
2.
3.
E.
LETTERS TESTAMENTARY AND OF

ADMINISTRATION
1. WHEN AND TO WHOM THE LETTERS OF

ADMINISTRATION GRANTED
Q: Who can administer the estate?
A:
1.
2.
3.
Executor named by the testator in his

will for the administration of his property
after his death;
Administrator appointed by the court in
accordance with the Rules or governing
statutes to administer and settle the
intestate testate; or
Administrator with a will annexed
appointed by the court in cases when,
although there is a will, the will does not
appoint any executor, or if appointed,
said person is either incapacitated or
unwilling to serve as such.
Q: State the order of preference in granting letters

of administration. (to whom letters are granted)
A: If no executor is named in the will, or the
executors are incompetent, refuse the trust, or fail
to give the bond, or a person dies intestate,
administration shall be granted to:
1.
2.
A: Any competent person may serve as executor or

administrator. There may be several executors
named in the will. Letters testamentary may issue
to such of them as are competent, accept and give
bond. (Sec. 4, Rule 78)
Q: Who are incompetent to serve as executor or

administrator?
Letters testamentary authority issued to

an executor named in the will to
administer the estate;
Letters of administration authority
issued by the court to a competent
person to administer the estate of the
deceased who died intestate; or
Letters of administration with a will
annexed authority issued by the court
to a competent person to administer the
estate of the deceased if the executor
named in the will refused to accept the
office, or is incompetent.
2. ORDER OF PREFERENCE
Q: Who may serve as executor or administrator?
Note: If the named executor does not qualify, then an

administrator may be appointed. (Sec. 6, Rule 78)
Non-resident of the Philippines; and

Those who, in the opinion of the court,
are unfit to execute the duties of the trust
by reason of drunkenness, improvidence,
want of understanding or integrity, or
conviction of an offense involving moral
turpitude (Sec. 1, Rule 78).
3.
The surviving spouse or next of kin, or

both, in the discretion of the court, or to
such person as such surviving spouse or
next of kin, requests to have appointed, if
competent and willing to serve
The principal creditors, if competent and
willing to serve, if the surviving spouse or
next of kin, or the person selected by
them be incompetent or unwilling or if
the surviving spouse or next of kin
neglects for 30 days after the death of the
person to apply for administration or to
request that administration be granted to
some other person
Such other person as the court may select
if there is no such creditor competent and
willing to serve. (Sec. 6)
NOTE: Order of preference may be disregarded for a

valid cause.
A:
1.
176
Minor;
REMEDIAL LAW TEAM:
SPECIAL PROCEDINGS
Note: Co-administrators may be appointed for the
benefit of the estate and those interested therein
(Matute v. CA, G.R. No. 26751, Jan. 31, 1969).
Q: What is the rationale behind the order of

preference in appointing an administrator?
A: The underlying assumption behind this rule is
that those who will reap the benefits of a wise,
speedy and economical administration of the estate
or on the other hand, suffer the consequences of
waste, improvidence or mismanagement, have the
higher interest and most influential motive to
administer the estate correctly (Gonzales v.
Aguinaldo, G.R. No. 74769, Sept. 28, 1990).
Q: When may co-administrators be appointed?
A:
1.
2.
3.
4.
5.
To have the benefit of their judgment and

perhaps at all times to have different
interests represented;
Where justice and equity demand that
opposing parties or factions be
represented in the management of the
estate of the deceased;
Where the estate is large or, from any
cause, an intricate and perplexing one to
settle;
To have all interested persons satisfied
and the representatives to work in
harmony for the best interest of the
estate; or
When a person entitled to the
administration of an estate desires to
have
another
competent
person
associated with him in the office. (Gabriel
v. CA, G.R. No. 101512, Aug. 7, 1992)
1.
2.
Note: Letters of administration may be granted to any

qualified applicant, though it appears that there are
other competent persons having better right to the
administration, if such persons fail to appear when
notified and claim the issuance of letters to themselves
(Sec. 6, Rule 79).
Q: Is the order of Appointment of Regular

Administrator final?
A: No. The order of appointment of a regular
administrator is appealable. Where no notice is
required by Sec. 3, Rule 79 of the Rules of Court has
been given to persons believed to have an interest
in the estate of the deceased person; the
proceeding for the settelement of the estate is void
and should be annulled. The requirement as to
notice is essential to the validity of the proceeding
in order that no person may be deprived of his right
to property without due process of law. (Herrera,
Vol. III-A, p. 94, 2005 ed.)
4. POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS; RESTRICTIONS ON THE
POWERS
Q: What are the rights of the executor or
administrator of the deceased partners estate?
A:
1.
3. OPPOSITION TO ISSUANCE OF LETTERS

TESTAMENTARY; SIMULTANEOUS FILING OF
PETITION FOR ADMINISTRATION
2.
Q: Who may oppose the issuance of letters

testamentary or administration?
3.
A: Any person interested in the will may file a

written opposition.
Note: He may attach thereto a petition for letters of
administration and pray that letters be issued to
himself, or to any competent person named in the
opposition (Sec. 1, Rule 79).
Q: What are the grounds for opposing a petition

for administration?
A: Any interested person may by filing a written
opposition, contest the petition on the ground of
the:
Incompetency of the person for whom

letters are prayed therein; or
Contestant's
own
right
to
the
administration (Sec. 4, Rule 79).
He shall at all times have access to, and

may examine and take copies of books
and papers relating to the partnership;
He can make invoices of the property
belonging to the partnership, and the
surviving partner or partners on request;
and
The books, papers, and property in the
partnerships hands or control shall be
exhibited
to
such
executor
or
administrator. (Sec. 1, Rule 84)
Note: To exercise these rights, the executor or

administrator must file his application with the
probate court which must grant the same.
Q: What should be done by the executor or

administrator to freely exercise his rights and
duties?
A: He shall submit a written application to the court
having jurisdiction of the estate. (Sec. 1, Rule 84)

177

Q: What are the general
administrator or an executor?
powers
of
an
6.
A:
7.
1.
2.
3.
4.
5.
To have access to, and examine and take

copies of books and papers relating to the
partnership in case of a deceased partner
To examine and make invoices of the
property belonging to the partnership in
case of a deceased partner
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
To make improvements on the properties
under administration with the necessary
court approval except for necessary
repairs
To possess and manage the estate when
necessary:
i) For the payment of debts; and
ii) For the payment of expenses of
administration
Q: Is the right of an executor/administrator to the

possession and management of property of the
deceased absolute?
He cannot profit by the increase or

decrease in the value of the property
under administration;
He cannot exercise the right of legal
redemption over a portion of the
property owned in common sold by one
of the other co-owners. (Herrera, Vol. IIIA, pp. 116-117, 2005 ed.)
5. APPOINTMENT OF SPECIAL ADMINISTRATOR

REGULAR
ADMINISTRATOR
Order of Appointment
may be the subject of an
appeal
One of the obligations is
to pay the debts of the
estate
Appointed when the
deceased died intestate
or did not appoint an
executor in the will or the
will was disallowed
SPECIAL
ADMINISTRATOR
Order of Appointment is
interlocutory and hence
not appealable
Cannot pay the debts of
the estate
Appointed when there is
delay in granting letters
testamentary
or
administration
Q: When are the grounds for the appointment of a

special administrator?
A:
A: No, it can only be exercised so long as it is

necessary for the payment of debts and expenses of
administration (Ruiz v. CA, G.R. No.118671, Jan. 29,
1996).
1.
Q: What are the restrictions on the powers of

administrator or executor?
2.
When there is delay in granting letters

testamentary or of administration by any
cause including an appeal from the
allowance or disallowance of a will (Sec. 1,
Rule 80); or
When the executor or administrator is a
claimant against the estate he represents
(Sec. 6, Rule 86).
A:
1.
2.
3.
4.
He cannot acquire by purchase, even at

public or judicial action, either in person
or mediation of another, the property
under administration;
He cannot borrow money without
authority from the court;
He cannot speculate with funds under
administration;
He cannot lease the property under
administration for more than 1 year;
Note: The administrator has the power to
enter into lease contracts involving the
properties of the estate even without prior
judicial authority and approval. (Mananquil
v. Villegas, A.M. No. 2430, Aug. 30, 1990)
5.
178
He cannot continue the business of the

deceased unless authorized by the court;
and
Note: Only one special administrator at a time may be

appointed, since the appointment is merely
temporary.
Q: Why is there a need for appointing a special

administrator?
A: The principal object is to preserve the estate
until it can pass into the hands of persons fully
authorized to administer it for the benefit of the
creditors and heirs (De Guzman v. Guadiz, G.R. No.
L-48585, Mar. 31, 1980).
Q: What are the qualifications of a special
administrator?
A: These are not spelled out in the Rules of Court.
Thus, the appointment should be within the sound
discretion of the court. The fundamental and legal
principles governing the choice of a regular
administrator should also be taken into account in
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
the appointment of a special administrator.
(Herrera, Vol. III-A, p. 99, 2005 ed.)
2.
Q: Does the order of preference in the
appointment of regular administrators apply to
the appointment of special administrators?
A: No, but such order of preference may be
followed by the judge in the exercise of sound
discretion (Matias v. Gonzales, G.R. No. L- 13391,
May 25, 1960).
administrator is appointed with those

powers.
If a special administrator has been
appointed, and thereafter a proceeding to
contest a will before it is admitted to
probate has been instituted, the court
shall enter an order granting to the
special administrator the additional
powers, duties and obligations of an
executor or administrator and requiring
such additional bond as the court deems
proper.
Q: Is the order appointing a special administrator

appealable?
6. GROUNDS FOR REMOVAL OF ADMINISTRATOR
A: No, it is an interlocutory order. (Esler v. Tad-y,

G.R. No. L-20902, Oct. 9, 1923)
Q: What are the grounds for the removal of an

executor or administrator?
Q: What are the powers and duties of a special

administrator?
A:
1.
A:
1.
2.
3.
4.
5.
Possess and take charge of the goods,

chattels, rights, credits and estate of the
deceased;
Preserve the same;
Commence and maintain suit for the
estate;
Sell only:
a. Perishable property; and
b. Other property ordered sold by the
court;
Pay debts only as may be ordered by the
court. (Sec. 2, Rule 80)
Q: When do the powers of special administrator

cease?
2.
3.
4.
5.
Neglect to render an account and settle

the estate according to law;
Neglect to perform an order or judgment
of the court, or a duty expressly provided
by the Rules;
Absconds;
Becomes insane; or
Becomes incapable or unsuitable to
discharge the trust (Sec. 2, Rule 82).
Note: These grounds are not exclusive. False

misrepresentation by an administrator in securing his
appointment is a ground for his removal (Cobarrubias
v. Dizon, G.R. No. L-225, Feb. 26, 1946).
Q: What are the other grounds for removal of an

A:
A: After the questions causing the delay are

resolved and letters testamentary or administration
are granted to executor or regular administrator.
(Sec. 1)
Q: When can 2 special administrators be
appointed?
A:
1.
If a special administrator is appointed

pending determination of a contest of a
will instituted before it is admitted to
probate, or pending an appeal from an
order appointing, suspending or removing
an executor or administrator, the special
administrator has the same powers,
duties and obligations as an executor or
administrator, and the letters of
administration issued to the special
administrator must recite that the special
1. Death;
2. Resignation;
3. An administrator who disbursed funds of
the estate without judicial approval.
(Cotia vs. Jimenez, 104 Phil. 960);
4. False representation by an administrator
in securing his appointment (Cabarubbias
vs. Dizon, 76 Phil. 209);
5. An administrator who holds an interest
adverse to that of the estate or by his
conduct showing his unfitness to
discharge the trust (Garcia vs. Vasquez, 32
SCRA 490);
6. An administrator who has the physical
inability and consequent unsuitability to
manage the estate (De Borja vs. Tan, 93
Phil. 167).

179

Q: Are the grounds for removal of executor or
administrator the same for special administrator?
Q: What is the duty of the court after granting

letters testamentary or of administration?
A: No. The grounds for the removal of regular

administrator do not apply strictly to the special
administrator as he may be removed by the court
on other grounds upon its discretion.
A: The court shall issue a notice requiring all

persons having money claims to file them in the
office of the clerk of court. (Sec. 1, Rule 86)
Q: What is the rule on proceedings upon death,

resignation or removal of an executor or
administrator?
A: When an executor or administrator dies, resigns,
or is removed the remaning executor or
administrator may administer the trust alone,
unless the court gransts letters to someone act with
him. If there is no remaining executor or
administrator, administration may be granted to
any suitable person.
Q: Does the discovery of a will automatically
terminate the letters of administration?
A: No, until the will has been proved and allowed
pursuant to Section 1, Rule 82. (De Parreno v.
Aranzanso, G.R. No. L- 27657, Aug. 30, 1982)
Q: What are the powers of a new executor or
administrator after the first one resigns or is
removed?
1. TIME WHITIN WHICH CLAIMS SHALL BE FILED;

EXCEPTIONS
Q: What is the time within which claims shall be
filed?
A: It should not be less than six (6) months nor
more than twelve (12) months from the day of the
first publication of the notice thereof. Such period
when fixed by the probate court becomes
mandatory. However, at any time 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) month. (Sec. 2, Rule 86)
The period prescribed in the notice to creditors is
not exclusive; that money claims against the estate
may be allowed at any time before an order of
distribution is entered, at the discretion of the court
for the cause and upon such terms as are equitable.
(Quisumbing vs Guison, 76 Phil 730)
A:
1.
To collect and settle the estate not

administered;
2. To prosecute or defend actions
commenced by or against the former
executor or administrator; and
To recover execution on judgments in the name of
former executor or administrator. (Sec. 4, Rule 82)
F.
CLAIMS AGAINST THE ESTATE
Q: What is a claim?
A: Claim refers to any debt or pecuniary demand
against the decedents estate.
Q: What is absolute claim?
A: It is one which, if contested between living
persons, would be the proper subject of immediate
legal action and would supply a basis of judgment
for a sum certain.
Q: What is contingent claim?
A: It is a conditional claim, which is subject to the
happening of a future uncertain event. (Buan v.
Laya, G.R. No. L-7840, Dec. 24, 1957)
180
Note: The range of period specified in Sec.2 of Rule 86

is intended to give the court the discretion to fix the
period for the filing of the claims. The probate court is
permitted by the rule to set the period as long as it is
within the limitation provided.
2. STATUTE OF NON-CLAIMS
Q: What is the statute of non-claims?
A: It is a period fixed by the courts for the filing of
claims against the estate for examination and
allowance. (Herrera, Vol. III-A, p. 132, 2005 ed.)
Q: When should claims be filed?
A:
GR: Within the time fixed in the notice which
shall not be more than 12 months nor less than
6 months after the date of the first publication.
Such period once fixed by the court is
mandatory. Otherwise, the claims are barred
forever.
Note: Where an executor or administrator
commences an action, or prosecutes an action
already commenced by the deceased in his
lifetime, the debtor may set forth by answer the
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
claims he has against the decedent, and mutual
claims may be set off against each other in such
action. (Sec. 5, Rule 86)
estate may be commenced against the executor or

administrator under Rule 87.
Q: What if the effect of claims not filed?
XPN: Belated claims.

Q: What is the rule on Belated Claims?
A: Belated claims may be filed even beyond the
period fixed by the court:
1.
2.
On application of a creditor who has

failed to file his claim within the time
previously limited, at any time before an
order of distribution is entered, the court
may, for just causes, allow such claim to
be filed not exceeding 1 month from the
order allowing belated claims; or (Sec. 2 ,
Rule 86)
Where the estate filed a claim against the
creditor or claimant who failed to present
his claim against the estate within the
period fixed by the probate court for the
settlement of such claims, the creditor
will be allowed to set up the same as a
counterclaim to the action filed by the
estate against him.
Note: Statute of non-claims supersedes the Statute of

Limitations insofar as the debts of deceased persons
are concerned because if a creditor fails to file his
claim within the time fixed by the court in the notice,
then the claim is barred forever. However, both
statute of non-claims and statute of limitations must
concur in order for a creditor to collect.
Q: What claims against the estate of the decedent

must be presented in the probate court in the
testate or intestate proceedings?
A: Only claims which survive such as:
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. Expenses for the last sickness of the
decedent; or
4. Judgment for money against the
decedent. (Sec. 5, Rule 86)
Note: Action on contractual claims such as favorable
judgment obtained by the plaintiff in an action for
recovery of money arising from contract, express or
implied, and the defendant dies before entry of final
judgment may be filed against the estate of the
decedent. (Sec. 20, Rule 3)
Action which survives like an action to recover real

or personal property or an interest therein from the
A: As expressly provided by the rule, all claims not

presented within the time herein provided are
barred.
Q: The trial court admitted to probate the
holographic will of Alice and thereafter issued an
order for all the creditors to file their respective
claims against the estate. Alan filed a contingent
claim for agent's commission due him in the event
of the sale of certain parcels of land belonging to
the estate and reimbursement for expenses
incurred. The executrix of the estate moved for
the dismissal of said money claim against the
estate on the grounds that Alan failed to attach a
certification against non-forum shopping. The trial
court dismissed the case. Is the trial court correct?
A: No. Under Sections 1 and 5, Rule 86 of the Rules
of Court, after granting letters of testamentary or of
administration, all persons having money claims
against the decedent are mandated to file or notify
the court and the estate administrator of their
respective money claims; otherwise, they would be
barred, subject to certain exceptions. A money
claim is only an incidental matter in the main action
for the settlement of the decedent's estate; more
so if the claim is contingent since the claimant
cannot even institute a separate action for a mere
contingent claim. Hence, Alans contingent money
claim, not being an initiatory pleading, does not
require a certification against non-forum shopping.
(Sheker v. Estate of Alice O. Sheker, G.R. No.157912,
Dec. 13, 2007)
Q: Should taxes due and assessed after the death
of the decedent be presented in the form of a
claim?
A: No. The court in the exercise of its administrative
control over the executor or administrator may
direct him to pay such taxes. Moreover, heirs even
after distribution are liable for such taxes. (Vera v.
Fernandez, G.R. No. L-31364, Mar. 30, 1979)
3. CLAIM OF EXECUTOR OR ADMINISTRATOR
AGAINST THE ESTATE
Q: What should be the action of the executor or
administrator if he has a claim against the estate?
A: He shall give notice to the court in writing and
the court shall thereafter appoint a special
administrator (Sec. 8, Rule 86).

181
Q: What is the procedure in filing claims?

A:
Q: Jericho loaned P5 Million from Carina. Said loan

was secured by a real estate mortgage over a
parcel of land owned by Jericho. Thereafter,
Jericho died without satisfying the loan secured by
the said mortgage. What are the remedies
available to Carina to enforce her mortgage credit?
A:
1. Waive the mortgage and claim the entire debt

from the estate of the mortgagor as an
ordinary claim;
2. Foreclose the mortgage judicially and prove
any deficiency as an ordinary claim;
3. Rely on the mortgage exclusively, foreclosing
the same at any time before it is barred by
prescription without the right to claim for any
deficiency (Sec. 7, Rule 86).
Note: The above remedies are alternative.
182
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
4. PAYMENT OF DEBTS
5.
Q: Is execution the proper remedy to satisfy an

approved claim?
6.
A: No, because:
1.
2.
Payment approving a claim does not create a

lien upon property of the estate
Special procedure is for the court to order the
sale to satisfy the claim
Q: How shall the proceeds from sale of personal

property be used?
A:
1.
Note: A writ of execution is not the proper

procedure to satisfy debts. The court must order
the sale or mortgage of the properties of
decedent, the proceeds of which will satisfy the
debts and expenses.
Q: How should the debts of the estate be paid?

A:
GR: The payment of the debts of the estate
must be taken from the following order:
1.
2.
3.
Portion or property designated in the will

The debts of the testator, expenses of
administration, or family expenses, shall
be paid according to the provisions of the
will. If such are insufficient, the properties
not disposed of by will, if any, shall be
appropriated for that purpose.
Personal property;
Real property. (Sec. 2, Rule 88)
Note: If there is still a deficiency, it shall be
met by contributions of devisees, legatees,
or heirs who have entered into possession
of portions of the estate before the debts
and expenses have been settled and paid
(Secs. 2, 3, and 6, Rule 88).
XPNS: On application by executor or

administrator, with written notice to persons
interested, and after hearing, real properties
can be charged first even though the personal
properties are not exhausted when:
1.
2.
3.
4.
The personal property is not sufficient to

pay the debts, expenses of administration
and legacies (Sec. 3, Rule 88);
The sale of such personal property would
be detrimental to the participants of the
estate (Sec. 3, Rule 88);
Sale of personal property may injure the
business or other interests of those
interested of the estate (Sec. 2, Rule 89);
The testator has not made sufficient
provision for payment of such debts,
expenses or legacies (Sec. 2, Rule 89);
The decedent was, in his lifetime, under

contract, binding in law, to deed real
property to beneficiary (Sec. 8, Rule 89);
The decedent during his lifetime held real
property in trust for another person (Sec.
9, Rule 89).
2.
3.
To pay the debts and expenses of

administration;
To pay legacies; and
To cover expenses for the preservation of
the estate. (Sec. 1, Rule 89)
Q: How should contingent claims be paid?

A: If the court is satisfied that a contingent claim
duly filed is valid, it may order the executor or
administrator to retain in his hands sufficient estate
to pay such contingent claim when the same
becomes absolute, or if the estate is insolvent,
sufficient estate to pay a portion equal to the
dividend of the other creditors. (Sec. 4, Rule 88)
Q: What must be satisfied before a contingent
claim may be allowed by the court?
A:
1.
2.
3.
Duly filed within the 2 year period

allowed for the creditors to present
claims;
The claim is valid; and
The claim became absolute. (Sec. 5, Rule
88)
Q: What is the consequence if the contingent claim

is not presented within the 2 year period after it
becomes absolute?
A: The assets retained in the hands of the executor
or administrator, not exhausted in the payment of
claims, shall be distributed by the order of the court
to the persons entitled to the same (Sec. 4, Rule
88). However, the assets so distributed may still be
applied to the payment of the claim when
established, and the creditor may maintain an
action against the distributees to recover the debt,
and such distributees and their estates shall be
liable for the debt in proportion to the estate they
have respectively received from the property of the
deceased.
Note: If heirs have taken possession of portions of the
estate before the debts have been settled, they shall
become liable to contribute for the payment of debts
and expenses, and the court may, after hearing, settle

183

the amount of their several liabilities, and order how
much and in what manner each person shall
contribute (Sec. 6, Rule 88).
A: Those claims which can proceed independently

of the settlement proceeding such as:
1.
Q: What is the order of payment if estate is

insolvent or assets are insufficient?
2.
3.
A: The executor or administrator shall pay the debts

according to the concurrence and preference of
credits provided by Articles 1059 and 2239-2251 of
the NCC (Sec. 7, Rule 88).
Q: How should the estate in the Philippines of an
insolvent non-resident be disposed of?
A: It shall be disposed of that his creditors in and
outside the Philippines may receive an equal share,
in proportion to their respective credits (Sec. 9, Rule
88).
Q: When and how should claims proved outside
the Philippines against insolvent residents estate
be paid?
A: Claims proven outside the Philippines where the
executor had knowledge and opportunity to contest
its allowance may be added to the list of claims
proved against the decedent in the Philippines and
the estate will be distributed equally among those
creditors (Sec. 10, Rule 88).
Note: The benefits in the above provision shall not be
extended to the creditors in another country if the
property of such deceased person there found is not
equally apportioned to the creditors residing in the
Philippines and the other creditors, according to their
respective claims.
Q: When should the court authorize sale,

mortgage or other encumbrance of estate to pay
debts and legacies in other countries?
A: When it appears from records and proceedings
of a probate court of another country that the
estate of the deceased in foreign country is not
sufficient to pay debts and expenses, the court here
may authorize the executor or administrator to sell,
mortgage or encumber the property in the same
manner as for the payment of debts and legacies in
the Philippines (Sec. 5, Rule 89).
G.
ACTIONS BY AND AGAINST EXECUTORS AND

ADMINISTRATORS
1. ACTIONS THAT MAY BE BROUGHT AGAINST

EXECUTORS AND ADMINISTRATORS
Q: What actions may be brought against the
184
Actions to recover real or personal

property, or an interest therein, from the
estate;
Enforcement of a lien;
Actions to recover damages for an injury
to person or property, real or personal.
(Sec. 1, Rule 87)
Q: What action may be brought by the executor or

administrator?
A: Recovery or protection of the property or rights
of the deceased, action for causes which survive.
(Sec. 2, Rule 87)
Note: When an executor or administrator is appointed
and assumes the trust, no action to recover the title or
possession of lands or for damages done shall be
maintained against him by an heir or devisee until
there is an order of the court assigning the lands to
such heir or devisee or until the time allowed for
paying debts has expired. (Sec. 3, Rule 87)
Q: What is the concept of a superseades bond?

A: It partakes the form of a security posted by the
appealing party (who has lost the case in the lower
court) to compensate the opposing party for the
legal expenses in case it wins also in the higher
(appellate) court.
Q: What are the requisites in order that
executor/administrator may commence and
prosecute an action for the recovery of property, if
the decedent fraudulently conveys property to
defraud his creditors?
A:
1.
2.
3.
Application of the creditors;

Payment of cost and expenses; and
Give security therefore to the executor or
administrator. (Sec. 9, Rule 87)
2. REQUISITES BEFORE CREDITOR MAY BRING AN

ACTION FOR RECOVERY OF FRAUDULENTLY
CONVEYED BY THE DECEASED
Q: What are the requisites before a creditor may
bring an action for recovery of property
fraudulently conveyed by the deceased?
A:
1.
There is a deficiency of assets in the

hands of an executor or administrator for
the payment of debts and expenses of
administration;
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
2.
3.
4.
5.
6.
7.
In his lifetime, the deceased 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;
The subject of the attempted conveyance
would be liable to attachment in his
lifetime;
The executor or administrator has shown
no desire to file the action or failed to
institute the same within a reasonable
time;
Leave is granted by the court to the
creditor to file the action;
A bond is filed by the creditor; and
The action by the creditor is in the name
of the executor or administrator (Sec. 10).
Note: The creditor shall have a lien on the judgment

recovered for costs and expenses. The last 3 requisites
are unnecessary where the grantee is the executor or
administrator himself, in which event, the action
should be in the name of all the creditors. (Sec. 10;
Herrera, Vol. III-A, p. 175, 2005 ed.)
H. DISTRIBUTION AND PARTITION

1. LIQUIDATION
Q: What is liquidation?
A: Liquidation is the determination of all assets of
the estate and payment of all debts and expenses.
Q: Discuss the process for the distribution of the residue of the estate.
A:

185

Note: Even if the testator stated in his will that he owes a certain person and ordered that the same be paid, if the
estate is insolvent, the creditor shall not enjoy priority over other claimants. The provision in the will should only
establish the claim of the creditor against the estate. He must still file his claim according to Section 9, Rule 86 and must
comply with the statute of non-claims.
Q: When is the order for distribution of residue

made?
It is merely a proposal for the distribution of the

hereditary estate which the court may accept or
reject. (Herrera, Remedial Law III-A, p 213)
A:
GR: Order of distribution shall be made after
payments of all debts, funeral expenses,
expenses for administration, allowance of
widow and inheritance tax. (Sec. 1, Rule 90)
Q: May an heir of the deceased sell his undivided

share during the pendency of the estate
proceedings without the prior approval of the
probate court?
XPN: If the distributees or any of them gives a

bond conditioned for the payment of said
obligation, the order of distribution may be
made even before the payment of all debts, etc.
(par. 2, Sec. 1, Rule 90)
A: Yes. An heir has the right to sell his undivided or

ideal share of the estate, he being the co-owner
with other heirs of the estate. Court approval is
necessary only if specific property of the estate is
sold. (Heirs of Pedro Escanlar v. CA, G.R. No.
119777, Oct. 23, 1997)
Note: The probate court loses jurisdiction over the

settlement proceedings only upon payment of all
debts and expenses of the obligor and delivery of
the entire estate to all the heirs. (Guilas v. Judge of
CFI of Pampanga, G.R. No. L- 26695, Jan. 31, 1972)
Q: When should declaration of heirship be made?

A: It is only after, and not before, the payment of all
debts, funeral expenses, charges of administration,
allowances to the widow, and inheritance tax shall
have been effected that the court should make the
declaration of heirs or of such person as are
entitled by law to the residue.
It should however be made clear that what the
court is enjoined from doing so is the distribution of
the residue of the estate before its obligations are
first paid, but the court is not enjoined from making
the declaration of heirs prior to the satisfaction of
these obligations.
Q: Does the finality of the approval of the project

of partition by itself alone terminate the probate
proceeding?
A: No. 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. (Estate of Ruiz v. CA, G.R. No. 118671,
Jan. 29, 1996)
3. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT
NOT GIVEN HIS SHARE
Q: What is the remedy of an heir who is entitled to
the residue but was not given his share?
A:
1.
MOTION
TO
SET
ASIDE
THE
DISTRIBUTION- If an heir appears after
the court approved the project of
partition, the heir must file a Motion to
set aside the distribution with the court
so that the court will not proceed with
the distribution of the residue. The
probate court shall determine whether
such heir has a right to participate in the
distribution of the residue. If it is proven
that the heir has a right, the court may
order the revision of the project of
partition for its adjustment.
2.
MOTION FOR THE RE- OPENING OF THE

SETTLEMENT
PROCEEDINGS-If
the
distribution has already been made, a
motion for closure has already been
granted, the heir must file a Motion for
the re-opening of the settlement
proceedings within the 30 day
Q: What should the executor or administrator do if

all the claims are paid or settled?
A: The executor or administrator shall prepare the
project of partition reflecting the residue of the
estate and how it is to be distributed. However, this
is not mandatory. (Herrera, Vol. III-A, p. 213, 2005
ed.)
2. PROJECT OF PARTITION
Q: What is project of partition?
A: It is a document prepared by the executor or
administrator setting forth the manner in which the
estate of the deceased is to be distributed among
the heirs. (Solivio v. CA, G.R. No. 83308, Feb. 12,
1990)
186
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
reglementary period, provided the order
of closure has not yet become final and
executory.
3.
CFI of Mindoro, 85 Phil. 228, a writ of

execution is not the proper procedure
allowed by the Rules of Court for the payment
of debts and expenses of administration. The
proper procedure is for the court to order the
sale of personal estate or the sale or
mortgage of real property of the deceased
and all debts and expenses of the
administration should be paid out of the
proceeds of such 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. And
when the sale or mortgage is to be made, the
regulations contained in Rule 89, Sec. 7
should be complied with.
ACCION REINVIDICATORIA- If the order of

closure has already become final and
executory, (Vda. de Lopez v. Lopez, G.R.
No. L-28602, Sept. 29, 1970)
Q: When is title to property vested to the heirs?

A: It is vested from finality of order of distribution.
Q: Is the order that determines distributive share
appealable?
A: Yes. Otherwise, it becomes final.
4. INSTANCES WHEN PROBATE COURT MAY ISSUE
WRIT OF EXECUTION
XPNS:
1. To satisfy the distributive shares of the
devisees, legatees and heirs in possession
of the decedents assets;
2. To enforce payment of the expenses of
partition; and
3. To satisfy the costs when a person is cited
for examination in probate proceedings.
Q: What are the instances when the probate court

may issue writ of execution?
A:
GR: A probate court cannot issue a writ of
execution. In the case of Aldamiz vs. Judge of
I. TRUSTEES
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 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)
TRUSTEE
Accounts must be UNDER OATH and filed ANNUALLY
Court which has jurisdiction is the RTC if appointed to

carry into effect provisions of a will; if trustee dies, resigns
or is removed in a contractual trust, RTC has jurisdiction in
the appointment of new trustee
May sell or encumber property of the estate held in trust
if necessary or expedient or upon order of the court
Order of sale has NO TIME LIMIT

Approved by the court to settle estate of the decedent
Order of sale has NO TIME LIMIT

Appointed to carry into effect the provisions of a will or
written instrument (contractual trust)
NOT EXEMPTED from filing a bond even if such exemption

is provided in the will (ratio: bond is only conditioned upon
payment of debts)
May be EXEMPTED from filing a bond if provided in the

will or if beneficiaries requested such exemption
Services of executors or administrator is terminated

UPON PAYMENT OF DEBTS of the estate and
DISTRIBUTION of property to the heirs
Trusteeship is terminated upon TURNING OVER THE

PROPERTY to beneficiary after expiration of the trust
(period may be provided for in the will or trust contract)
MUST PAY the debts of the estate
NO OBLIGATION TO PAY the debts of the beneficiaries or

trustor

187

Q: What is a trust?
3. REQUISITES FOR THE REMOVAL AND

RESIGNATION OF A TRUSTEE
A: A legal relationship between one person having

an equitable ownership in property and another
person owning the legal title to such property.
Q: What are the requisites for the removal or

resignation of a trustee?
Q: Who is a trustee?
A:
1.
A: A trustee is one who is appointed to carry out

the provision of the will or any written instrument
executed by the trustor.
2. CONDITIONS OF THE BOND
Q: What are the conditions of the bond?
A:
1.
That the trustee will make and return to

the court, at such time as it may order, a
true inventory of all the estate belonging
to him as trustee, which at the time of the
making of such inventory shall have come
to his possession or knowledge;
Note: When the trustee is appointed as a
successor to a prior trustee, the court may
dispense with the making and return of an
inventory if one has already been filed.
2.
3.
4.
5.
That he will manage and dispose of all

such estate, and faithfully discharge his
trust in relation thereto, according to law
and the will of the testator or the
provisions of the instrument or order
under which he is appointed;
That he will render upon oath at least
once a year until his trust is fulfilled a true
account of the property in his hands and
of the management and disposition
thereof, and such other accounts as the
court may order; and
That at the expiration of his trust he will
settle his accounts in court and pay over
and deliver all the estate remaining in his
hands, or due from him on such
settlement, to the persons entitled
thereto (Sec. 6, Rule 98).
Q: Is the trustee required to file a bond?

A:
GR: Yes. Neglect of trustees to file a bond will
be interpreted by the court as resignation or
decline to accept the trust.
XPN: If requested by the testator or by all
persons beneficially interested in the trust, the
trustee may be exempted from filing a bond.
But the court may cancel such exemption
anytime. (Sec. 5, Rule 98)
188
2.
3.
Petition filed by parties beneficially

interested;
Notice to trustee; and
Hearing (Sec. 8, Rule 98).
4. GROUNDS FOR REMOVAL AND RESIGNATION OF

A TRUSTEE
Q: What are the grounds for removal or
resignation of a trustee?
A:
1.
2.
3.
4.
Removal appears essential in the interest

of petitioners;
Insanity;
Incapability of discharging the trust; or
Unsuitability (Sec. 8, Rule 98).
Note: A trustee may resign his trust if it appears to the

court proper to allow such resignation (Sec. 8, Rule 98).
5. EXTENT OF AUTHORITY OF TRUSTEE

Q: What is the extent of authority of a trustee?
A: Rule 98, applies only to express trust, one which
is created by a will or a written instrument.
Q: When is there a testamentary trust?
A: If a testator has omitted in will to appoint a
trustee in the Philippines, and if such appointment
is necessary to carry into effect the provisions of
the will. After notice to all persons interested, the
proper RTC may appoint a trustee who shall have
the same rights, powers, and duties, and in whom
the estate shall vest, as if he had been appointed by
the testator.
Q: When is there a contractual trust?
A: When a trustee under a written instrument
declines, resigns, dies, or is removed before the
objects of the trust are accomplished, and no
adequate provision is made in such instrument for
supplying the vacancy after due notice to all
persons interested, the proper RTC may appoint a
new trustee to act alone or jointly with the others,
as the case may be.
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
Q: Can the possession of the trustee of the
property ripen into ownership?
Q: Can the court convert escheat proceedings into

settlement of the estate?
A:
GR: An action to compel a trustee to convey
property registered in his name in trust for the
benefit of the cestui qui trust does not
prescribe. The trustees possession is not
adverse and therefore cannot ripen into title by
prescription.
XPN: Prescription may arise where there is
adverse possession of the property. To
constitute adverse possession, the following
must be present:
1.
2.
3.
That the trustee has performed

unequivocal acts amounting to an ouster
of the cestui qui trust;
That such positive acts of repudiation had
been made known to the cestui qui trust;
and
That the evidence thereon should be clear
and conclusive. (Ceniza vs. CA, 181 SCRA
552)
J. ESCHEAT
Q: What is escheat?
A: It is a French or Norman term meaning chance or
accident. It is the reversion of property to the State
in consequence of want of any individual
competent to inherit.
1. WHEN TO FILE
Q: What are the three instances of escheat?
A:
1.
2.
3.
When a person dies intestate leaving no

heir but leaving property in the
Philippines (Sec. 1, Rule 91);
Reversion proceedings where sale of
property is made in violation of the
Constitutional provision; and
Dormant accounts for 10 years
(Unclaimed Balance Act of Banking Laws).
2. REQUISITES FOR FILING OF PETITION
A: No, once the court acquires jurisdiction to hear

the petition for escheat by virtue of the publication
of the petition for escheat, this jurisdiction cannot
be converted into one for the distribution of the
properties of the decedent.
Note: For the distribution of the estate to be
instituted, the proper petitions must be presented and
the proceedings should comply with the requirements
of the Rules of Court. (Municipality of Magallon v.
Bezore, G.R. No. L-14157, Oct. 26, 1960)
3. REMEDY OF RESPONDENT AGAINST PETITION;

PERIOD FOR FILING A CLAIM
Q: What is the remedy of the respondent against
the petition for escheat?
A: When the petition does not state the facts which
entitle the petitioner to the remedy prayed for, or
even admitting them hypothetically, the
respondent may file a MOTION TO DISMISS, in such
case the Motion to dismiss plays the role of a
demurrer to evidence (Herrera, Remedial Law III-A,
p 227-228)
K. GUARDIANSHIP
Q: What is guardianship?
A: It is a trust relation in which one person acts for
another whom the law regards as incapable of
managing his own affairs.
Note: Guardianship of minors is now governed by the
Rule on Guardianship of Minors (AM No. 03-02-05-SC)
which took effect on May 1, 2003. While guardianship
of incompetents who are not minors is still governed
by the provisions of the Rules of Court on
Guardianship. (Rule 92- 97)
Q: What is ancillary guardianship?

A: It refers to the guardianship in a state other than
that in which guardianship is originally granted.
1. GENERAL POWERS AND DUTIES OF GUARDIANS
Q: What are the requisites for filing a petition?
Q: To what extent does guardianship extend?
A:
A: Conflicts regarding ownership or title to the

property in the hands of the guardian in his capacity
as such should be litigated in a separate
proceeding, the court in guardianship proceeding is
concerned solely with the wards care and custody
and proper administration of his properties (Villoria
1.
2.
3.
A person died intestate;

He left no heirs or persons by law entitled
to the same; and
The deceased left properties in the
Philippines. (Sec. 1, Rule 91)

189

v. Administrator of Veteran Affairs, L-9620, June
1957)
2.
Q: What are the general powers and duties of
guardians?
A:
1.
2.
3.
4.
5.
6.
7.
To have the care and custody of the

person of the ward, and/or the
management of his estate;
Pay the debts of the ward;
To settle accounts, collect debts, and
appear in actions for the ward;
Manage the estate of the ward frugally,
and apply the proceeds to the
maintenance of the ward;
Render verified inventory within 3
months after his appointment and
annually thereafter, and upon application
of interested persons;
Render to court for its approval an
accounting of the property for 1 year
from his appointment and as often
thereafter as may be required, and upon
application of interested persons
Consent to a partition of real or personal
property owned by ward jointly or in
common with others. (Secs. 1-8, Rule 96;
Sec. 17, A.M. No. 03-02-05-SC)
Q: What is the order of liability of the wards

property?
A:
1. Personal estate and income of real estate
2. Real estate
Q: What are the requisites to authorize the
guardian to join in the partition proceedings after
hearing?
A:
1.
2.
3.
Hearing
Notice to relatives of the ward; and
Careful investigation as to the necessity
and propriety of the proposed action
(Section 5)
2. CONDITIONS OF THE BOND OF THE GUARDIAN

Q: What are the conditions of the bond of the
guardian?
A:
1.
190
To make and return to the court, within 3

months, a true and complete inventory of
all the estate of his ward which shall
come to his possession or knowledge or
3.
4.
to the possession or knowledge of any

other person for him;
To faithfully execute the duties of his
trust, manage and dispose of the estate
according to the rules for the best
interests of the ward, and to provide for
the proper care, custody, and education
of the ward;
To render a true and just account of all
the estate of the ward in his hands, and of
all proceeds or interest derived there
from, and of the management and
disposition of the same, at the time
designated by the rules and such other
times as the court directs; and at the
expiration of his trust, 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; and
To perform all orders required by the
court (Sec. 1, Rule 94; Sec.14, A.M. No.
03-02-05-SC).
Q: What is the purpose of the bond?

A: It 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
(Herrera, Vol. III-A, p. 282, 2005 ed.)
Note: The bond of the guardian is a continuing one
against the obligors and their estates until all of its
conditions are fulfilled. The mere fact that defendant
was removed as guardian did not relieve her or her
bondsmen from liability during the time she was duly
acting as such guardian. (Guerrero v. Teran, G.R. No. L4898, Mar. 19, 1909)
Q: Does the requirement of posting a bond extend

to parents who are the legal guardians of their
minor children? Explain.
A:
GR: No, if the market value or annual income of
the child is P 50,000 or below.
XPN: If the market value of the property or the
annual income of the child exceeds P50,000,
the parent concerned shall furnish a bond in
such amount as the court may determine, but
in no case less than 10% of the value of such
property or annual income, to guarantee the
performance of the obligations prescribed for
general guardians (Sec. 16, A.M. No. 03-02-05SC).
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
3. RULE ON GUARDIANSHIP OVER MINOR
A:
1.
2.
Q: Who may petition for appointment of guardian

for resident?
3.
4.
5.
A:
1. Any relative;
2. Other person on behalf of the minor;
3. Minor himself is 14 years of age; or
4. Secretary of Social Welfare and
Development AND by the Secretary of Health in
case of insane minor who needs to be hospitalized.
(Section 2, AM-03-02-05-SC)
Q: Is court appointment necessary to enable the
father and the mother to exercise joint legal
guardianship over the person and property of
minor?
A: No. The father and the mother shall jointly
exercise legal guardianship over the person and
property of their minor without the necessity of a
court appointment. In such case, this Rule shall be
suppletory to the provisions of the Family Code on
Guardianship (Section 1, AM -03-02-05-SC)
Q: What would the court do if an issue arises as to
who has the better right or title to the properties
conveyed in the guardianship proceeding?
A:
GR: The issue should be threshed out in a
separate ordinary action as it is beyond the
jurisdiction of the guardianship court.
XPN: When the wards right or title to the
property is clear and undisputable, the
guardianship court may issue an order directing
its delivery or return.
6.
7.
Moral character;
Physical, mental, and psychological
condition;
Financial status;
Relationship of trust with the minor;
Availability to exercise the powers and
duties of a guardian for the full period of
the guardianship;
Lack of conflict of interest with the minor;
and
Ability to manage the property of the
minor (Sec. 5, A.M. No. 03-02-05-SC).
Note: 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. (Sec.9, A.M. No. 03-02-05-SC).
Q: Who may be appointed as guardian of a minor?

A: In default of parents or a court-appointed
guardian, the court may appoint a guardian of the
person or property, or both, of a minor, observing,
as far as practicable, the following order of
preference:
1. Surviving grandparent and, in case several
grandparents survive, the court shall
select any of them taking into account all
relevant considerations;
2. Oldest brother or sister of the minor over
21 years of age, unless unfit or
disqualified;
3. Actual custodian of the minor over 21
years of age, unless unfit or disqualified;
4. Any other person, who in the sound
discretion of the court would serve the
best interests of the minor (Sec. 6, A.M.
No. 03-02-05-SC).
Q: What are the grounds for the appointment of a

guardian over the person or property, or both, of a
minor?
Q: What are the grounds for opposition to petition

of guardianship of minors?
A:
A:
1.
2.
3.
4.
Death, continued absence, or incapacity

of his parents;
Suspension, deprivation or termination of
parental authority;
Remarriage of surviving parent, if the
latter is found unsuitable to exercise
parental authority; or
When the best interests of the minor so
require (Sec. 4, A.M. No. 03-02-05-SC).
Q: What are the factors to be considered for the

appointment of guardian of minors?
1.
2.
Majority of the alleged minor; or

Unsuitability of the person for whom
letters are prayed for (Sec. 10, A.M. No.
03-02-05-SC).
Q: How may a petition for guardianship of minors

or incompetents be opposed?
A: Any interested person may contest the petition
by filing a written opposition and pray that the
petition be denied, or that letters of guardianship
issue to himself, or to any suitable person named in
the opposition (Sec. 10, A.M. No. 03-02-05-SC; Sec.
4, Rule 9).

191

L. ADOPTION
Q: What is adoption?
A: 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.
A: No. Adoption cannot be had without the written

consent of a natural parent who has allegedly
abandoned them. Abandonment cannot be merely
presumed, it must be duly proven. Moreover, there
should be proof of emotional abandonment. (Cang
v. CA, GR No. 105308, Sept. 25, 1998).
Q: Is publication of the hearing for adoption
necessary for the adoption to be valid?
Q: What is the State policy on adoption?

A: It is the policy of the State to ensure that every
child remains under the care of his or her parent/s
and be provided with love, care, understanding and
security towards the full and harmonious
development of his personality.
Q: What is a Child Legally Available for Adoption?
A: A Child Legally Available for Adoption refers to a
child in whose favor a certification was issued by
the DSWD that he/she is legally available for
adoption after the fact of abandonment or neglect
has been proven through the submission of
pertinent documents, or one who was voluntarily
committed by his/her parent(s) or legal guardian.
(Sec. 2(5), R.A. 9523).
Q: What is the requirement in order that the child
may be declared legally available for adoption?
A: There must be a certification which shall be
issued by the DSWD in lieu of a judicial order, thus
making the entire process administrative in nature.
The certification, shall be, for all intents and
purposes, the primary evidence that the child is
legally available in a domestic adoption and in an
inter-country adoption proceeding (Sec. 8, Ibid.).
Q: Can minor children be legally adopted without
the written consent of a natural parent on the
ground that the latter has abandoned them?
A: Indeed, publication of the scheduled hearing for

the petition for adoption is necessary for the
validity of a decree of adoption but not for the
purpose merely of taking a deposition. In taking a
deposition, no substantial rights are affected since
depositions may or may not be presented or may
even be objected to when formally offered as
evidence at the trial of the main case later on. the
philosophy behind adoption statutes is to promote
the welfare of the child and every reasonable
intendment should be sustained to promote that
objective. (Republic v. Elepano, G.R. No. 92542, Oct.
15, 1991).
Note: The necessary consequence of the failure to
implead the civil registrar as an indispensable party
and to give notice by publication of the petition for
correction of entry was to render the proceeding of
the trial court, so far as the correction of entry was
concerned, null and void for lack of jurisdiction both as
to party and as to the subject matter. (Republic v. CA,
G.R. No. 103695, Mar. 15, 1996).
Q: What is the effect of adoption created under

the law of a foreign country?
A: It is entitled to registration in the corresponding
civil register of the Philippines. It is to be
understood, however, that the effects of such
adoption shall be governed by laws of the
Philippines. (Marcaida v. Aglubat, G.R. No. L-24006,
Nov. 25, 1967)
1. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION
Jurisdiction
Who May adopt
192
DOMESTIC
Family Court where adopter resides
1) Any Filipino citizen of legal age, in

possession of full civil capacity and legal rights,
of good moral character, has not been
convicted of any crime involving moral
turpitude;
who
is
emotionally
and
psychologically capable of caring for children, at
least sixteen (16) years older than the adoptee,
and who is in a position to support and care for
INTER-COUNTRY
Inter-Country Adoption Board
(Petition may also be filed with Family Court
where adoptee resides; FC to endorse petition
to ICAB)
A foreigner must meet the following
requirements in order to be qualified to adopt
in the Philippines under the Inter-Country
Adoption Act:
a) GR: at least twenty-seven (27) years of
age and at least sixteen (16) years older
than the child to be adopted, at the time
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
his children in keeping with the means of the
family. The requirement of a 16-year difference
between the age of the adopter and adoptee
may be waived when the adopter is the
biological parent of the adoptee or is the
spouse of the adoptees parent;
2) Any alien possessing the same qualifications
as above-stated for Filipino nationals: Provided,
That his country has diplomatic relations with
the Republic of the Philippines, that he has
been living in the Philippines for at least three
(3) continuous years prior to the filing of the
petition for adoption and maintains such
residence until the adoption decree is entered,
that he has been certified by his diplomatic or
consular office or any appropriate government
agency to have the legal capacity to adopt in his
country, and that his government allows the
adoptee to enter his country as his adopted
child. Provided, further, That the requirements
on residency and certification of the aliens
qualification to adopt in his country may be
waived for the following:
(i) A former Filipino citizen who seeks
to adopt a relative within the fourth
(4th) degree of consanguinity or
affinity;
(ii) One who seeks to adopt the
legitimate child of his Filipino
spouse;
(iii) One who is married to a Filipino
citizen and seeks to adopt jointly
with his spouse a relative within the
fourth (4th) degree of consanguinity
or affinity of the Filipino spouse.
(3) The guardian with respect to the ward after
the termination of the guardianship and
clearance of his financial accountabilities.
of application;
XPN: if the adopter is the parent by nature
of the child to be adopted or the spouse
of such parent, he/she is not required to
meet the above age requirement;
b) If married, his/her spouse must jointly file
for the adoption;
c) With 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) Not convicted of a crime involving moral
turpitude;
e) Eligible to adopt under his/her national
law;
f) 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 family
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 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.
Husband and wife shall jointly adopt, except in

the following cases:
(i) Iif one spouse seeks to adopt the
legitimate child of one spouse by
the other spouse; or
(ii) If one spouse seeks to adopt his
own illegitimate child: Provided,
however, That the other spouse has
signified his consent thereto; or
(iii) If the spouses are legally separated
from each other.
Supervised
Custody
Trial
In case husband and wife jointly adopt or one

spouse adopts the illegitimate child of the
other, joint parental authority shall be
exercised by the spouses.
Within the Philippines (6 month period
discretionary upon the court to shorten period
or exempt parties from trial custody)
Within the country of the adopter (Mandatory;

all expenses borne by adopter)

193

Petition
adoption
for
Who may
adopted
be
May include
1. Prayer for change of name
2. Rectification of simulated birth
3. Declaration that child is abandoned,
dependent or neglected child or foundling
1. Any child legally declared available for
adoption
2. Legitimate or illegitimate child of a spouse
3. Person of legal age
Supporting
Documents
Publication
Where to
application
file
3 successive weeks in a newspaper of general

circulation in the province or city where the
court is situated
Family Court which has jurisdiction
2. DOMESTIC ADOPTION
a. EFFECTS OF ADOPTION
Q: What are the effects of adoption?
A:
1.
2.
3.
All legal ties between the biological

parents and the adoptee shall be severed
and the same shall then be vested on the
adopter/s, except where the biological
parent is the spouse of the adopter;
The adoptee shall be considered the
legitimate child of the adopter/s for all
intents and purposes and shall be entitled
to all the rights and obligations provided
by law to legitimate children born to them
without discrimination of any kind; and
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 biological
parent/s had left a will, the law on
testamentary succession shall govern.
(Secs. 16-18, R.A. 8552)
Note: The decree of adoption shall order the Civil

Registrar where the adoption was registered to issue a
certificate of birth which shall not bear that it is a new
or amended certificate and shall state among others,
the following: registry number, registration date, name
of child, sex, date of birth, place of birth, name and
citizenship of adoptive mother and father, and the
date and place of their marriage, when applicable.
[Sec. 16, 3(b)]
194
N/A
Child legally available for adoption
1.
2.
3.
4.
5.
N/A
Income Tax Returns

Police Clearance
Character Reference
Family Picture
Birth Certificate of adopter
May be made through foreign placement

agency which will then submit application to
the ICAB
Q: What is the effect of the petition for adoption

in relation to use of surnames?
A: Pursuant to Art. 189 of the Family Code which
states that the adopted child shall acquire the
reciprocal rights and obligations arising from the
relationship of a parent and child, including the
right of the adopted to use the surname of the
adopter, the adoptee has both the right and
obligation to use the surname of the adopter, and
that upon reaching the age of majority, he may file
a petition for a change of surname, as the use by
the adoptee of the surname of the adopter is more
an incident rather than the object of adoption
proceedings. (Republic v. CA, G.R. No. 97906, May
21, 1992)
Note: This ruling may imply that what may be included
in a petition for adoption is only the first or given
name of the adoptee and not the surname, for he has
the right and obligation, at least initially to use the
surname of the adopter. (Agpalo, Handbook on Special
Proceedings, p. 193, 2003 ed.)
While the right of a natural parent to name the child is
recognized, guaranteed and protected under the law,
the so-called right of an adoptive parent to re-name an
adopted child by virtue or as a consequence of
adoption, even for the most noble intentions and
moving supplications, is unheard of in law and
consequently cannot be favorably considered. To
repeat, the change of the surname of the adoptee as a
result of the adoption and to follow that of the
adopter does not lawfully extend to or include the
proper or given name. (Republic vs. Hernandez, G.R.
No. 117209, Feb. 9, 1996).
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
b. INSTANCES WHEN ADOPTION MAY BE
RESCINDED
Q: What are the grounds for rescission of
adoption?
permanently residing abroad where the petition is

filed, the supervised trial custody is taken, and the
decree of adoption is issued outside of the
Philippines. [Sec. 3(a)]
a. WHEN ALLOWED
A: Upon the petition of the adoptee, with the

assistance of the DSWD if a minor or though over
18 is incapacitated, on any of the following grounds
committed by the adopter/s:
1. Repeated
physical
and
verbal
maltreatment by the adopter/s despite
having undergone counseling;
2. Attempt on the life of the adoptee;
3. Sexual assault or violence; or
4. Abandonment and failure to comply with
parental obligations (Sec. 19, Ibid.).
Note: Only the adoptee can rescind the decree of
adoption. However, the adopter is not left without any
remedy as he may deny to an adopted child his
legitime and by will, may freely exclude him from
having a share in the disposable portion of his estate.
The new law had already abrogated or repealed the
right of an adopter under the Civil and Family Codes to
rescind a decree of adoption (Lahom v. Sibulo, G.R. No.
1439889, July 14, 2003).
Q: When may inter-country adoption be allowed?

A: It shall only be allowed when all the possibilities
for domestic adoption of the child have been
exhausted and that inter-country adoption is in the
best interest of the child. (Sec. 27a)
It is allowed when the adopter is an alien or a
Filipino citizen permanently residing abroad.
Moreover, his qualifications include:
1.
2.
3.
c. EFFECTS OF RESCISSION OF ADOPTION

Q: What are the effects of rescission of adoption?
A:
1.
2.
3.
4.
5.
The parental authority of the adoptee's

biological parent/s, if known, or the legal
custody of the DSWD shall be restored if
the adoptee is still a minor or
incapacitated;
The reciprocal rights and obligations of
the adopter/s and the adoptee to each
other shall be extinguished;
The court shall order the Civil Registrar to
cancel the amended certificate of birth of
the adoptee and restore his or her
original birth certificate;
The successional rights shall revert to its
status prior to adoption, but only as of
the date of
judgment of judicial
rescission; and
The vested rights acquired prior to judicial
rescission shall be respected (Sec. 23,
Ibid.).
3. INTER-COUNTRY ADOPTION (R.A. 8043)

Q: What is inter-country adoption?
A: It refers to the socio-legal process of adopting a
Filipino child by a foreigner or a Filipino citizen
4.
5.
6.
7.
8.
9.
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;
If married, his/her spouse must jointly
file for adoption;
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;
Has not been convicted of a crime
involving moral turpitude;
Is eligible to adopt under his/her national
law;
Is in a position to provide proper care
and support and to give the necessary
moral values and example to all his
children, including the child to be
adopted;
Agrees to uphold the basic rights of the
child as embodied under the Philippine
laws, the U.N. Convention of the Rights of
the Child, and to abide by the rules and
regulations issued to implement the
provisions of this Act;
Comes from another country with whom
the Philippines has diplomatic relations
and whose government maintains a
similarly authorized and accredited
agency and that adoption is allowed
under his/her national laws; and
Possesses all the qualifications and none
of the disqualifications provided herein
and other applicable laws. (Sec. 9, R.A.
8043).

195

b. FUNCTIONS OF THE RTC
Q: What is the function of the RTC in inter-country
adoption?
of liberty must be actual and effective, not merely

nominal or moral. (Ilusorio v. Bildner, G.R. Nos.13578990, May 16, 2000)
Q: What is the nature of the petition?

A: The Court, after finding that the petition is
sufficient in form and substance and a proper case
for inter-country adoption, shall immediately
transmit the petition to the ICAB for appropriate
action. (Sec. 32, Rule on Adoption).
The application for adoption shall be filed with the
RTC having jurisdiction over the child, or the InterCountry Adoption Board, through an intermediate
agency, whether governmental or an authorized
and accredited agency, in the country of the
prospective adoptive parents.
A: It is an inquisition by the government at the

suggestion and instance of an individual, most
probably, but still in the name and capacity of the
sovereign is a proceeding in rem. It is also instituted
for the purpose of fixing the status of a person and
that there can be no judgment entered against
anybody since there is no real plaintiff and
defendant. (Alimpoos v. CA, G.R. No. L-27331, July
30, 1981)
Note: In habeas corpus cases, the judgment in favor of
the applicant cannot contain a provision for damages.
c. BEST INTEREST OF THE MINOR STANDARD

Q: What is the Best Interest Standard?
A: It refers to the totality of the circumstances and
conditions as are most congenial to the survival,
protection, and feelings of security of the minor and
most 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)
1. CONTENTS OF THE PETITION

Q: What should a verified petition for a writ of
habeas corpus contain?
A:
1.
2.
M. WRIT OF HABEAS CORPUS

Q: What is writ of habeas corpus?
A: It is a writ directed to the person detaining
another and commanding him to produce the body
of the prisoner at a certain time and place with the
day and the cause of his caption and detention to
do, submit to and receive whatsoever, the court or
judge awarding the writ shall consider in that
behalf.
3.
4.
Note: It is regarded as palladium of liberty, a

prerogative writ which does not issue as a matter of
right but in the sound discretion of the court or judge.
That the person in whose behalf the

application is made is imprisoned or
restrained of his liberty;
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;
The place where he is so imprisoned or
restrained, if known;
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. (Sec. 3, Rule 102)
2. CONTENTS OF THE RETURN
Q: To what instances may habeas corpus extend?
Q: What are the contents of the return?
A:
A: 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:
1.
2.
Cases of illegal confinement or detention

by which a person is deprived of his
liberty; and
Cases by which the rightful custody of the
person is withheld from the person
entitled thereto. (Sec. 1, Rule 102)
1.
Note: To justify the grant of the petition, the restraint
of liberty must be an illegal and involuntary
deprivation of freedom of action. The illegal restraint
196
2.
Whether he has or has not the party in his

custody or power, or under restraint;
If he has the party in his custody or
power, or under restraint, the authority
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
3.
4.
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;
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;
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, Rule 102)
3. DISTINGUISH PEREMPTORY WRIT FROM

PRELIMINARY CITATION
Q: What is the difference between a preliminary
citation and a peremptory writ?
A:
1.
2.
Preliminary citation is issued when a

government officer has the person in his
custody, the illegality of which is not
patent, to show cause why the writ of
habeas corpus should issue.
Peremptory writ is issued when the cause
of the detention appears to be patently
illegal and the non-compliance therewith
is punishable. (Lee Yick Hon v. Collector of
Customs, G.R. No. 16779, Mar. 30, 1921).
4. WHEN NOT PROPER/APPLICABLE
Q: When is habeas corpus not applicable?

A:
1.
2.
3.
4.
5.
When detained under a lawful cause.

In case of invasion or rebellion or when
public safety requires it, under Art. III,
Sec. 15, 1987 Constitution.
When in case of invasion or rebellion or
when public safety requires it, for a
period not exceeding 60 days, under Art.
7, Sec. 18, 1987 Constitution.
If the jurisdiction of the court to try the
person detained appears after the writ is
allowed. (Sec. 4, Rule 102).
If the person is in custody of an officer
under process issued by a court or by
virtue of a judgment or order of a court of
record which has jurisdiction to issue the
process, render the judgment, or make

the order. (Sec. 4, Rule 102).
6. If the person is charged or convicted of an
offense in the Philippines. (Sec. 4, Rule
102).
7. If the person is suffering imprisonment
under lawful judgment. (Sec. 4, Rule 102).
8. In case of three-day retention of a suspect
for three days without charge, pursuant
to Sec. 18 of the Human Security Act.
9. When person is serving final sentence
imposed by court.
10. For asserting or vindicating a denial of
right to bail.
11. For correcting errors in appreciation of
facts or of law.
Note: Issuance of a writ of habeas corpus may not lie
in order to revive a settled issue of the validity of the
writ of preliminary injunction issued in an agrarian
case allegedly on the ground of the existence of a
tenancy relationship between the parties arising from
their arrest for having assaulted persons in authority.
(Bernarte v. CA, G.R. No. 107741, Oct. 18, 1996).
Loss of the records of the case after petitioner, by his
own admission, was already convicted by the trial
court of the offense charged will bar the issuance of a
writ of habeas corpus. The loss must have occurred
prior to the filing of the information against him. (Feria
v. CA, G.R. No. 122954, Feb. 15, 2000).
It has been noted that the ORDER contains a provision
enjoining the prosecution of the Accused in the
Criminal Case. That is error. If the Accused was illegally
detained because he was arrested without a
preliminary examination, what should have been done
was to set aside the warrant of arrest and order the
discharge of the Accused, but without enjoining the
Municipal Judge from conducting a preliminary
examination and afterwards properly issuing a warrant
of arrest. Habeas Corpus proceedings are not meant to
determine criminal responsibility. (Alimpoos v. CA, G.R.
No. L-27331, July 30, 1981).
In case of an illegal arrest, the petition for a writ
of habeas corpus will still not prosper if the detention
has become legal by virtue of the filing before the trial
court of the complaint against him and by the issuance
of an order denying bail. (Velasco v. CA, G.R. No.
118644, July 7, 1995).
Habeas Corpus may be had to give retroactive effect to
a previous ruling of the Supreme Court favorable to
the accused when the accused has already served the
full term for a crime which the Court has declared nonexistent. (Gumabon v. Director of the Bureau of
Prisons, G.R. No. L-30026, Jan. 30, 1971). However, it
will not lie if the penalty of imprisonment imposed by
the court is longer than that allowed by law. Such error
of judgment may be corrected by appeal or by the

197

President. (Pomeroy v. Director of Prisons, G.R. No. L14284, Feb. 24, 1960).
The writ of habeas corpus cannot be issued in cases in
which the Bureau of Immigration has duly ordered the
deportation of undocumented aliens, specifically those
found guilty of illegally entering the Philippines with
the use of tampered and previously cancelled
passports. (Tung Chin Hui v. Rodriguez, G.R. No.
141938, April 2, 2001).
Q: May a wife secure a writ of habeas corpus to

compel her husband to live with her in the
conjugal home?
A: No. Marital rights including coverture and living
in conjugal dwelling may not be enforced by the
extra-ordinary writ of habeas corpus. In case the
husband refuses to see his wife for private reasons,
he is at liberty to do so without threat of any
penalty attached to the exercise of his right. That is
a matter beyond judicial authority and is best left to
the man and womans free choice. (Ilusorio v.
Bildner, G.R. No. 139789, May 12, 2000).
5. WHEN WRIT DISALLOWED/DISCHARGED

Q: In what instances shall a writ be disallowed or
discharged?
A:
1.
2.
3.
In cases of supervening events such as

issuance of a process and filing of an
information (Velasco v. CA, G.R. No.
118844, July 7, 1995);
In cases of improper arrest or lack of
preliminary investigation (Paredes v.
Sandiganbayan, G.R. No. 89989, Jan. 28,
1991); and
In cases of invalid arrest due to
deportation cases cured by filing of
deportation proceedings (Santos v.
Commissioner of Immigration, G.R. No.L25694, Nov. 29, 1976).
Note: In all petitions for habeas corpus, the court must

inquire into every phase and aspect of petitioners
detention- from the moment petitioner was taken into
custody up to the moment the court passes upon the
merits of the petition and only after such a scrutiny
can the court satisfy itself that the due process clause
of the Constitution has been satisfied. (Bernarte v. CA,
G.R. No. 107741, Nov. 18, 1996)
When the court or judge has examined into the

cause of caption and restraint of the prisoner, and
is satisfied that he is unlawfully imprisoned or
restrained, he shall order his discharge from
confinement, but such discharge shall not be
198
effective until a copy of the order has been served

on the officer or person detaining the prisoner. If
the officer or person detaining the prisoner does
not desire to appeal, the prisoner shall be released.
6. DISTINGUISH FROM WRIT OF AMPARO AND
HABEAS DATA
Q: Distinguish Writ of Habeas Corpus from Writ of
Amparo and Writ of Habeas Data.
A: Refer to page 205.
7. RULES ON CUSTODY OF MINORS AND WRIT OF
HABEAS CORPUS IN RELATION TO CUSTODY OF
MINORS (AM No. 03-04-04-SC)
Q: Who may file a petition for custody of minor?
A: Any person may file a verified petition for the
rightful custody of a minor. The party against whom
it may be filed shall be designated as the
respondent. (Sec. 2, AM No. 03-04-04-SC).
Q: Where should a petition for custody of minor
be filed?
A: Family courts in the province or city where the
petitioner resides or where the minor may be
found. (Sec. 3, AM No. 03-04-04-SC)
Q: Whether Family Courts have concurrent
jurisdiction with the Supreme Court and the Court
of Appeals in petitions where the custody of minors
is at issue?
A: Yes. The Court of Appeals and Supreme Court
have concurrent jurisdiction with family courts in
habeas corpus cases where the custody of minors is
involved. The provisions of RA 8369 must be read
in harmony with RA 7029 and BP 129 that
family courts have concurrent jurisdiction with the
Court of Appeals and the Supreme Court in
petitions for habeas corpus where the custody of
minors is at issue. (Thornton v. Thornton, G.R. No.
154598, Aug. 16, 2004).
Q: What are the contents of the verified petition?
A:
1.
2.
3.
The personal circumstances of the petitioner

and of the respondent.
The name, age and present whereabouts of
the minor and his or her relationship to the
petitioner and the respondent.
The material operative facts constituting
deprivation of custody.
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
4.
Such other matters which are relevant to

the custody of the minor.
Certificate of Non-Forum Shopping signed
personally by the petitioner. (Sec. 4, AM No.
03-04-04-SC)
5.
2.
3.
Q: When is a child not allowed to be separated
from the mother?
4.
A: Under Article 213 (2) of the Family Code, no child

under 7 years of age shall be separated from the
mother, unless the court finds compelling reasons
to order otherwise.
5.
6.
Q: When will the court take into consideration the

choice of the child?
7.
8.
A: The child, who is over 7 years of age, may choose

which parent he prefers to live with, unless the
parent so chosen is unfit to take charge of the child
by reason of moral depravity, habitual drunkenness,
incapacity, or poverty. (Art. 213, Family Code)
Note: If both parents are unfit, the court may
designate other persons or an institution to take
charge of the child, such as the paternal or maternal
grandparent of the child, or his oldest brother or sister,
or some reputable and discreet person.
Q: What should be considered in awarding the

custody of minor?
A: The court shall consider the best interests of the
minor and shall give paramount consideration to his
material and moral welfare. (Sec. 14, AM No. 03-0404-SC).
Q: What is the Best Interest Standard?
A: It refers to the totality of the circumstances and
conditions as are most congenial to the survival,
protection, and feelings of security of the minor and
most 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,
AM No. 03-04-04-SC)
Q: What are the other factors that the court may
consider in awarding custody?
A:
1.
Any extrajudicial agreement which the

parties may have bound themselves to
comply with respecting the rights of the
minor to maintain direct contact with the
non custodial parent on a regular basis,
except when there is an existing threat or
danger of physical, mental, sexual or
9.
emotional violence which endangers the

safety and best interests of the minor;
The desire and ability of one parent to
foster an open and loving relationship
between the minor and the other parent;
The health, safety and welfare of the
minor;
Any history of child or spousal abuse by
the person seeking custody or who has
had any filial relationship with the minor,
including anyone courting the parent;
The nature and frequency of contact with
both parents;
Habitual use of alcohol, dangerous drugs
or regulated substances;
Marital misconduct;
The most suitable physical, emotional,
spiritual, psychological and educational
environment for the holistic development
and growth of the minor; and
The preference of the minor over seven
years of age and of sufficient
discernment, unless the parent chosen is
unfit. (Sec. 14, AM No. 03-04-04-SC)
Q: Would a decision rendering judgment on the

issue of custody of a child in a nullity of marriage
case constitute as res judicata on a pending
habeas corpus case on the same matter?
A: Yes. By filing the case for declaration of nullity of
marriage petitioner automatically submitted the
issue of the custody of the child as an incident
thereof. Section 21 of the "Rule on Declaration Of
Absolute Nullity Of Void Marriages and Annulment
of Voidable Marriages" directs the court taking
jurisdiction over a petition for declaration of nullity
of marriage to resolve the custody of common
children, by mere motion of either party, it could
only mean that the filing of a new action is not
necessary for the court to consider the issue of
custody of a minor. (Yu v. Yu, G.R. No. 164915,
March 10, 2006).
Q: What are the stages in the pre-trial?
A:
1.
2.
First stage the parties may agree on the

custody of the minor.
Second stage the trial court will direct
the parties to secure the services of a
mediator if the parties do not agree on
the custody of the minor. (Sec. 12, AM
No. 03-04-04-SC)
Note: If the second stage does not produce an

amicable settlement, the court will proceed with the
pre-trial conference. Pre-trial is mandatory. (Sec. 12,
AM No. 03-04-04-SC)

199
Q: What is the order of preference in awarding

provisional custody?
A: As far as practicable, the order of preference
shall be observed:
1. Both parents jointly;
2. Either parent, taking into account all
relevant considerations, especially the
choice of the minor over seven years of
age and of sufficient discernment, unless
the parent chosen is unfit;
3. The grandparent, or if there are several
grandparents, the grandparent chosen by
the minor over seven years of age and of
sufficient discernment, unless the
grandparent chosen is unfit or
disqualified;
4. The eldest brother or sister over twentyone years of age, unless he or she is unfit
or disqualified;
5. The actual custodian of the minor over
twenty-one years of age, unless the
former is unfit or disqualified; or
6. Any other person or institution the court
may deem suitable to provide proper care
and guidance for the minor.
Q: May the court award temporary visitation
rights in the provisional custody order?
A: Yes, the court shall provide in its order awarding
provisional custody appropriate visitation rights to
the non-custodial parent or parents, unless the
court finds said parent or parents unfit or
disqualified.
Q: What should the court award after the hearing?
A:
1.
2.
3.
Care, custody and control of each child as

will be for its best interest.
Court may order either or both parents to
support or help support the child,
irrespective of who may be its custodian.
The fact that the father has recognized
the child may be a ground for ordering
him to give support, but not for giving him
custody of the child.
Court may permit the parent who is
deprived of care and custody to visit the
child or have temporary custody thereof
in an order that is just and reasonable.
(Sec. 18, AM No. 03-04-04-SC)
Q: May the court award the custody of the minors

based merely on psychiatric report and agreement
of the parties?
200
A: No, the court should conduct thorough trial on

all matters relevant to the welfare and interests of
the child. (Laxamana v. Laxamana, G.R. No. 144763,
Sept. 3, 2002)
Q: Can the minor child be brought out of the
country without leave from court while the
petition is pending?
A: The minor child subject of the petition shall not
be brought out of the country without prior order
from the court while the petition is pending.
The court, motu proprio or upon application under
oath, may issue ex parte a hold departure order,
addressed to the Bureau of Immigration and
Deportation, directing it not to allow the departure
of the minor from the Philippines without the
permission of the court. (Sec. 16, AM No. 03-04-04SC)
N. WRIT OF AMPARO (AM No. 07-9-12-SC)
Q: What is writ of amparo?
A: It 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. (Sec. 1)
Note: The remedy provides rapid judicial relief as it
partakes of a summary proceeding that requires only
substantial evidence to make the appropriate reliefs
available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative
responsibility requiring substantial evidence that will
require full and exhaustive proceedings. (Deliberations
of the Committee on the Revision of the Rules of Court,
Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007 and Sept.
20, 2008)
Q: What are extralegal killings?

A: Killings committed without due process of law,
legal safeguards or judicial proceedings. (Secretary
of National Defense v. Manalo, G.R. No. 180906,
Oct. 7, 2008) These include the illegal taking of life
regardless of the motive, summary and arbitrary
executions, salvaging even of suspected criminals,
and threats to take the life of persons who are
openly critical of erring government officials and
the like.
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
Q: What are enforced disappearances?
A: An arrest, detention or abduction of a person by
a government official or organized groups or private
individual acting with the direct or indirect
acquiescence of the government; the refusal of the
State to disclose the fate or whereabouts of the
person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons
outside the protection of law. (Secretary of National
Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)
1. COVERAGE
Q: What is the scope of the Writ of amparo?
under Section 1, Rule 27 of the Rules of Civil

Procedure which provides in relevant part, viz:
Section 1. Motion for production or inspection
order. Upon motion of any party showing good
cause therefor, the court in which an action is
pending may (a) order any party to produce
and permit the inspection and copying or
photographing, by or on behalf of the moving
party, of any designated documents, papers,
books of accounts, letters, photographs,
objects or tangible things, not privileged,
which constitute or contain evidence material
to any matter involved in the action and which
are in his possession, custody or control.
A: It covers extralegal killings and enforced

disappearances or threats thereof. It is 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 search warrant is a court order issued by a judge

or magistrate judge that authorizes the law
enforcement officers to conduct a search of a
person or location for evidence of a crime and to
confiscate evidence if it is found. A writ of amparo
is a form of constitutional relief.
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.
4. WHO MAY FILE

Q: Who may file the petition?
A: Any aggrieved party may file the petition. It may
also be filed by any qualified person or entity in the
following order:
2. DISTINGUISH FROM HABEAS CORPUS AND

HABEAS DATA
1.

2.

3. DIFFERENCES BETWEEN WRIT OF AMPARO AND
SEARCH WARRANT
Q: What is the difference between a Writ of
Amparo from a Search Warrant?
A: In the October 7, 2008 decision of the Supreme
Court in the case of The Secretary of National
Defense vs. Manalo, the Court said that the
production order under the Amparo Rule should
not be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a
protection of the people from the unreasonable
intrusion of the government, not a protection of the
government from the demand of the people such
as respondents.
Instead, the Amparo production order may be
likened to the production of documents or things
3.
Any member of the immediate family,

namely: the spouse, children and parents
of the aggrieved party;
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
Any concerned citizen, organization,
association or institution, if there is no
known member of the immediate family
or relative of the aggrieved party.
NOTE: The filing of a petition by the aggrieved party

suspends the right of all other authorized parties to file
similar petitions. Likewise, the filing of the petition by
an authorized party on behalf of the aggrieved party
suspends the right of all others, observing the order
established herein. (Sec. 2).
5. CONTENTS OF RETURN
Q: What is the content of the verified return?
A: 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:

201

1.
2.
3.
4.
5.
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;
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;
All relevant information in the possession
of the respondent pertaining to the
threat, act or omission against the
aggrieved party; and
If the respondent is a public official or
employee, the return shall further state
the actions that have been or will still be
taken:
a. to verify the identity of the aggrieved
party;
b. 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;
c. to identify witnesses and obtain
statements from them concerning
the death or disappearance;
d. 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;
e. to identify and apprehend the
person or persons involved in the
death or disappearance; and
f. to bring the suspected offenders
before a competent court.
Other
matters
relevant
to
the
investigation, its resolution and the
prosecution of the case.
Note: A general denial of the allegations in the petition

shall not be allowed.
6. EFFECTS OF FAILURE TO FILE A RETURN

Q: What happens when the respondent fails to file
a return?
A: The court, justice or judge shall proceed to hear
the petition ex parte. (Sec. 9)
A: The omnibus waiver rules states that all defenses

not raised in the return are deemed waived. (Sec.
10).
8. PROCEDURE FOR HEARING
Q: What is the nature of the hearing?
A: The hearing on the petition shall be summary.
However, the court, justice or judge may call for a
preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations
and admissions from the parties. (Sec. 12).
Q: How long should the hearing last?
A: The hearing shall be from day to day until
completed and given the same priority as petitions
for habeas corpus. (Sec. 13)
9. INSTITUTION OF SEPARATE ACTION
Q: May a separate action be filed after filing a
petition for a writ of amparo?
A: Yes. It does not preclude the filing of separate
criminal, civil or administrative actions. (Sec. 21)
10. EFFECT OF FILING A CRIMINAL ACTION
Q: What is the effect if a prior criminal action has
been filed?
A: No petition for a writ of amparo shall be filed.
The reliefs under the writ shall be available by
motion in the criminal case. (Sec. 22)
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
amparo.
11. CONSOLIDATION
Q: What happens if criminal action is filed
subsequent to a petition for writ of amparo?
A: The petition for the writ shall be consolidated
with criminal action. (Sec. 23)
Q: What happens if a criminal action and a
separate civil action are filed subsequent to a
petition for writ of amparo?
A: The petition for writ of amparo shall be
consolidated with the criminal action.
7. OMNIBUS WAIVER RULE

Q: What is the Omnibus Waiver Rule?
202
Note: After consolidation, the procedure under this

Rule shall continue to apply to the disposition of the
reliefs in the petition.
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
12. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT
Q: What are interim reliefs available?
A:
1.
2.
3.
4.
PETITIONER
Temporary protection order;
Inspection order;
Production order;
Witness protection order. (Sec. 14)
Temporary
Protection Order
HOW INITIATED
Upon motion or motu proprio
Inspection Order
Upon verified motion and after due

hearing
Production Order
Upon verified motion and after due

hearing
Witness
Protection Order
Upon Motion or Motu Proprio
RESPONDENT
1.
2.
Inspection order;
Production order. (Sec. 15)
THE COURT SHALL

Order 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.
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.
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.
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.
13. QUANTUM OF PROOF IN APPLICATION FOR

ISSUANCE OF WRIT OF AMPARO
regularly performed to evade responsibility or

liability.
Q: What is the quantum of evidence required in a

petition for a writ of amparo?
Note: No writ of amparo may be issued unless there is

a clear allegation of the supposed factual and legal
basis of the right sought to be protected. A threatened
demolition of a dwelling by virtue of a final judgment
of the court 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. Their claim to their dwelling, assuming they
still have any despite the final and executory judgment
adverse to them, does not constitute right to life,
liberty and security. There is, therefore, no legal basis
for the issuance of the writ of amparo. (Canlas v.
Napico Homeowners Association, G.R. No. 182795,
June 5, 2008).
A: The parties shall establish their claims by

substantial evidence. (Sec. 17)
The respondent who is a private individual or entity
must prove that ordinary diligence as required by
the 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
Q: Raymond and Reynaldo Manalo escaped from

captivity and surfaced of the armed forces. But
while the two admit that they are no longer in

203

detention and are physically free, they assert, that
they are not free in every sense of the word as
their movements continue to be restricted for fear
that the people they have named in their judicial
affidavits and testified against are still at large and
have not held accountable. The Manalo brothers
claim that they are under the threat of being once
again abducted, kept captive or even killed, which
constitute a direct violation of their right to
security of person. They filed a petition for writ of
amparo. Should the court granted the petition?
A: Yes, the Manalo brothers right to security as
freedom from threat is violated by the apparent
threat to their life, liberty and security of person.
Their right to security as a guarantee of protection
by the government is likewise violated by the
ineffective investigation and protection on the part
of the military. In blatant violation of guarantees to
life, liberty and security, these rights are snuffed
out from victims of extralegal killings and enforced
disappearances. The writ of amparo is a tool that
gives voice to preys of silent guns and prisoners
behind secret walls. (Secretary of National Defense
v. Manalo, G.R. No. 180906, Oct. 7, 2008)
property, and may be ordered destroyed by the

court.
3. DISTINGUISH FROM HABEAS CORPUS AND WRIT
OF AMPARO
4. WHO MAY FILE
Q: Who may file the petition?
A: Any aggrieved party may file a petition for the
writ of habeas data. However, in cases of extralegal
killings and enforced disappearances, the petition
may be filed by:
1.
2.
O. WRIT OF HABEAS DATA (AM No. 08-1-16-SC)

1. SCOPE OF WRIT
Q: What is the scope of the writ?
A: The writ covers instances wherein a persons
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.
2. AVAILABILITY OF WRIT
5. CONTENTS OF PETITION
Q: What are the contents of the verified petition?
A:
1.
2.
3.
Q: What is writ of habeas data?

4.
A: It 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. It is a procedure designed to safeguard
individual freedom from abuse in the information
age. (Sec. 1)
Information or data written, tends to threaten
violation of constitutional right to life, liberty or
204
Any member of the immediate family of

the aggrieved party, namely: the spouse,
children and parents; or
In default thereof, any ascendant,
descendant or collateral relative of the
aggrieved party within the fourth civil
degree of consanguinity or affinity. (Sec.
2)
5.
6.
The personal circumstances of the

petitioner and the respondent
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
The actions and recourses taken by the
petitioner to secure the data or
information
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
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.
Such other relevant reliefs as are just and
equitable. (Sec. 6)
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
6. CONTENTS OF RETURN
A:
1.
Q: What should the respondent allege in his

verified return?
A: The respondent, within 5 working days from the
service of the writ, unless reasonably extended by
the Court, shall allege:
1.
2.
3.
The lawful defenses such as national

security,
state
secrets,
privileged
communication, confidentiality of the
source of information of media and
others;
In case of respondent in charge, in
possession or in control of the data or
information subject of the petition:
a. A disclosure of the data or
information about the petitioner, the
nature of such data or information,
and the purpose for its collection;
b. The steps or actions taken by the
respondent to ensure the security
and confidentiality of the data or
information; and
c. The currency and accuracy of the
data or information held; and
Other allegations relevant to the
resolution of the proceeding.
Note: A general denial of the allegations in the petition

shall not be allowed.
2.
When a subsequent criminal action is

filed, the Petition for the writ of Habeas
Data 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.
Note: After consolidation, the procedure under the

Rule shall continue to govern the disposition of the
reliefs in the petition. (Sec. 21)
9. EFFECT OF FILING A CRIMINAL ACTION

Q: What is the effect of an institution of a criminal
action?
A: No separate petition for the writ shall be filed.
The reliefs under the writ shall be available to an
aggrieved party by motion in the criminal case. (Sec.
22).
10. INSTITUTION OF SEPARATE ACTION
Q: Does the filing of a petition for the writ of
habeas data prohibit the filing of separate
criminal, civil or administrative actions?
7. INSTANCES WHEN PETITION BE HEARD IN

CHAMBERS
A: The filing of a petition for the writ of habeas data

shall not preclude the filing of separate criminal,
civil or administrative actions. (Sec. 20).
Q: What are the instances when a petition for a

writ of habeas data may be heard in chambers?
11. QUANTUM OF PROOF IN APPLICATION FOR

WRIT OF HABEAS DATA
A: It 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
security and that it cannot be divulged to the public
due to its nature or privileged character. (Sec. 12)
Q: What is the quantum of evidence required in a

petition for a writ of habeas data?
8. CONSOLIDATION
Q: What happens when a criminal and/or civil
action is filed after the filing of the petition for
writ of habeas data?
A: The court shall render judgment within (10) days

from the time the petition is submitted for decision.
If the allegations in the petition are proven by
substantial evidence, the court shall enjoin the act
complained of, or order the deletion, destruction,
or rectification of the erroneous data or
information and grant other relevant reliefs as may
be just and equitable; otherwise, the privilege of
the writ shall be denied. (Sec. 16.).
Q: What are the differences between the writs?

A:
HABEAS CORPUS
You have the body
AMPARO
To protect
HABEAS DATA
Literal interpretation
You have the data
KALIKASAN
It is a Filipino word which
means nature in English

205
Rule 102
A.M. No. 07-9-12-SC
Writ directed to
the
person
detaining another,
commanding him
to produce the
body
of
the
prisoner
at
a
designated
time
and place, with the
day and cause of
his capture and
detention, to do,
submit to, and
receive whatsoever
the court or judge
awarding the writ
shall consider in
that behalf.
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.
Governing rule
A.M. No. 08-1-16-SC
Description
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.
A.M. No. 09-6-8-SC

Special remedy available
to a natural or juridical person,
entity authorized by law,
peoples organization, nongovernmental organization, or
any public interest group
accredited by or registered with
any government agency, on
behalf of persons whose
constitutional
right
to
a
balanced and healthful ecology
is violated, or threatened with
violation by an unlawful act or
omission of a public official or
employee, or private individual
or
entity,
involving
environmental damage of such
magnitude as to prejudice the
life, health or property of
inhabitants in two or more cities
or provinces.
Coverage
Involves the right
to liberty of and
rightful custody by
the aggrieved
party.
Involves the right to life,

liberty, and security of
the aggrieved party and
covers extralegal killings
and enforced
disappearances.
Involves the right to privacy in life,

liberty, and security of the
aggrieved party and covers
extralegal killings and enforced
disappearances.
Constitutional right to a
balanced and healthful
ecology.
Rights violated
There is an actual
violation of the
aggrieved partys
right.
There is an actual or
threatened violation of
the aggrieved partys
right.
RTC or any judge

thereof, CA or any
member thereof in
instances
authorized by law;
or SC or any
member thereof.
RTC of the place where

the threat, act or
omission was committed
or any of its elements
occurred; SB or any
justice thereof; CA or any
justice thereof; SC or any
justice thereof.
Habeas Corpus
1.
Party for whose relief

it is intended; or
2.
Any person on his

behalf
206
Amparo
There is an actual or threatened

violation of the aggrieved partys
right.
Where to file
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; or with SC, CA or SB
when the action concerns public data
files or government offices.
There is an actual or
threatened violation of ones
right to a healthful and
balanced ecology involving
environmental damage.
In SC or any stations of the CA.
Habeas Data
Who may file a petition
In the following order:
1. Any aggrieved party;
1. Any member of the
2. However, in cases of extralegal
immediate family
killings
and
enforced
2. Any
ascendant,
disappearances:
descendant,
or
a. Any member of the
collateral relative of
immediate family
the aggrieved party
b. Any
ascendant,
th
within the 4 civil
descendant, or collateral
degree
of
relative of the aggrieved
consanguinity
or
party within the 4th civil
affinity
degree of consanguinity
3. Any concerned citizen,
or affinity
organization,
Kalikasan
A
natural
or
juridical
person,
entity authorized
by law, peoples
organization, nongovernmental
organization,
or
any public interest
group accredited
by or registered
with
any
government
agency.
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
association
institution
May or may not be an

officer.
If granted by SC or CA:
enforceable anywhere In
the Philippines;
or
Respondent
Public official or employee or a
private individual or entity engaged
Public official or employee in the gathering, collecting or storing
or a private individual or
of data or information regarding the
entity.
person, family, home and
correspondence of the aggrieved
party.
Enforceability of the writ
Enforceable anywhere in the Philippines regardless of who issued

the same
If granted by RTC:
enforceable only within
the judicial district
Public official or
employee, private
individual or entity.
Enforceable
anywhere in the
Philippines
Docket fees
Payment is required
Note: Rule on indigent
petitioner applies.
Served upon the person to
whom it is directed, and if
not found or has not the
prisoner in his custody, to
the other person having or
exercising such custody
Payment is required.
Petitioner is exempted
from payment
Note: Rule on indigent petitioner

applies.
Service of writ
Served upon the

respondent personally; or
substituted service
Served upon the respondent

personally; or substituted service
Petitioner is
exempted from
payment
Served upon the

respondent
personally; or
substituted service.
Person who makes the return

Officer by whom the
prisoner is imprisoned or
the person in whose
custody the prisoner is
found
On the day specified in the

writ
Habeas Corpus
If granted by the SC or
CA: returnable before
the court or any
member or before RTC
or any judge thereof;
If granted by RTC:
returnable before such
court
Respondent
Respondent
Respondent
When to file a return

The respondent shall file a verified
Within 5 working days
written return together with
after service of the writ,
supporting affidavits within 5
the respondent shall file a
working days from service of the
verified written return
writ, which period may be
together with supporting
reasonably extended by the Court
affidavits.
for justifiable reasons.
Amparo
Habeas Data
Return
If issued by RTC: returnable
If issued by RTC: returnable
before such court;
before such court;
If issued by SB or CA or any
of their justices:
returnable before such
court or to any RTC of the
place where the threat, act
or omission was
committed or any of its
elements occurred;
If issued by SC or any of its
justices: returnable before
such court, or before SB,
If issued by SB or CA or any of
their justices: returnable
before such court or to any
RTC of the place where the
petitioner or respondent
resides or that which has
jurisdiction over the place
where the data or
information is gathered,
collected or stored;
Within nonextendible period

of 10 days after the
service of writ.
Kalikasan
If issued by SC, returnable

before such court or CA.
If issued by SC or any of its

207

CA, or to any RTC of the
place where the threat, act
or omission was
committed or any of its
elements occurred
justices: returnable before

such court, or before SB, CA,
or to any RTC of the place
where the petitioner or
respondent resides or that
which has jurisdiction over
the place where the data or
information is gathered,
collected or stored
General denial
Not prohibited.
Not allowed.
Not allowed.
Not allowed.
Liability of the person to whom the writ is directed if he refuses to make a return
Forfeit to the aggrieved
party the sum of
Imprisonment or fine for
Imprisonment or fine for
Indirect contempt.
P1000, and may also be
committing contempt.
committing contempt.
punished for contempt.
Hearing
The hearing including the
preliminary conference shall
Summary hearing shall be
Summary hearing shall be
Date and time of
not extend beyond sixty (60)
conducted not later than 7
conducted not later than 10
hearing is specified in
days and shall be given the
days from the date of
working days from the date
the writ.
same priority as petitions for
issuance of the writ.
of issuance of the writ.
the writs of habeas corpus,
amparo and habeas data.
Period of appeal
Within 48 hours from
notice of the judgment
or final order appealed
from.
5 working days from the

date of notice of the
adverse judgment.
Habeas Corpus
Amparo
5 working days from the date

of notice of the judgment or
final order.
Habeas Data
Prohibited pleadings
1.
2.
None
Within fifteen (15) days from

the date of notice of the
adverse judgment or denial
of motion for
reconsideration.
Motion to dismiss;
Motion for extension of time to file opposition,
affidavit, position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross - claim;
6. Third - party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or
interim relief orders; and
12. Petition for certiorari, mandamus or prohibition
against any interlocutory order.
Kalikasan
1.
2.
3.
4.
5.
6.
7.
8.
Motion to dismiss;
Motion for extension of
time to file return;
Motion for
postponement;
Motion for a bill of
particulars;
Counterclaim or crossclaim;
Third-party complaint;
Reply; and
Motion to declare
respondent in default.
Note: In writ of amparo, one rare instance where the SB, notwithstanding its status as a special court, is vested with
jurisdiction co-equal with SC, CA and RTC. Take note that CTA, albeit acting as a special court being in the same rank of
CA and SB, is not vested with jurisdiction to issue writ of amparo.
P. CHANGE OF NAME
1. DIFFERENCES UNDER RULE 103, R.A. 9048 AND RULE 108
Discuss the differences among Rule 103 (Change of Name), R.A. 9048 (Administrative Correction of Clerical or
Typographical Error/Change of first name or nickname) and Rule 108 (Cancellation or Correction of Clerical or
Typographical Error).
208
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
A:
Rule 103
R.A. 9048
Scope
Change of first name or

surname.
Change of first name or nickname/ correction

of clerical errors of entries in the Civil Registry.
Rule 108
Correction of or substantial errors
of entries in the Civil Registry/
cancellation of entries.
Nature
Judicial; hearing is necessary.
Verified petition.
RTC of the province where the
petitioner resides at least 3
months.
CA under Rule 41
Filed by the person desiring to

change his name.
Solicitor General/ Interested

parties.
Order for hearing shall be
published once a week for 3
consecutive weeks.
1. Name is ridiculous, tainted
with dishonor or extremely
difficult
to
write
or
pronounce;
2. Habitual and continuous used
and been known since
childhood by a Filipino name,
unaware
of
her
alien
parentage;
3. Consequence of a change of
status;
4. A sincere desire to adopt a
Filipino name to erase signs of
former alienage, all in good
faith and without prejudicing
anybody;
5. The change will avoid
confusion; or
6. When the surname causes
embarrassment and there is
no showing that the desired
change of name was for a
fraudulent purpose or that
the change of name should
Administrative; hearing is not necessary.
Judicial; hearing is necessary

Summary if it involves clerical
errors
Adversarial if it involves substantial
errors.
Initiated by
Sworn affidavit.
Verified petition.
Where to file
1. Local Civil Registry office where the record
RTC where the corresponding civil
is kept;
registry is located.
2. Consul general.
Where to appeal , in case of adverse decision
Civil Registrar General under Sec. 7 or CA
CA under Rule 41
under Rule 43
Who may file
Petition is filed by the person of legal age who
must have a direct and personal interest in the
correction:
1. Owner of the record;
Any person interested in the act,
2. Owners spouse, children, parents,
event, decree or order concerning
brothers, sisters, grandparents, guardian;
the civil status of persons.
or
3. Anyone authorized by law or owner of the
record.
Who must be notified
Interested parties/Solicitor General need not be
notified.
Publication
Order for hearing in case of change of first
name/nickname shall be published once a week
for 2 consecutive weeks.
Grounds
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.
Civil registrar as respondent; Solicitor

General/ Interested parties.
Order for hearing shall be published
once a week for 3 consecutive weeks.
N/A

209

prejudice public interest.
(Republic v. CA, G.R. No.
88202, Dec. 14, 1998).
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; and
2. Change of a person's first
name or nickname in his or
her civil registry.
Entries subject to correction

1. Correction of clerical or typographical errors in
the civil registry
2. change of first name or nickname in the civil
registry
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Births;
Marriages;
Deaths;
Legal separations;
Judgments of annulments of
marriage;
Judgments declaring marriages
void from the beginning;
Legitimations;
Adoptions;
Acknowledgments of natural
children;
Naturalization;
Election, loss or recovery of
citizenship;
Civil interdiction;
Judicial determination of
filiation; and
Change of name. (Sec. 2)
NOTE: Clerical/typographical error refer 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 place of birth
and the like, and can be corrected or changed only by reference to other existing record or records. [Sec. 2(3) of RA 9048]
2. GROUNDS FOR CHANGE OF NAME

Q: What are the grounds for change of name
under Rule 103?
A:
nationality of a party, it is deemed substantial, and the

procedure to be adopted is adversary. (Republic v.
Bautista, 155 SCRA 1, Oct. 26, 1987).
Q. ABSENTEES
1. PURPOSE OF THE RULE
1.
2.
3.
4.
5.
6.
Name is ridiculous, tainted with dishonor

or extremely difficult to write or
pronounce;
Habitual and continuous used and been
known since childhood by a Filipino name,
unaware of her alien parentage;
Consequence of a change of status;
A sincere desire to adopt a Filipino name
to erase signs of former alienage, all in
good faith and without prejudicing
anybody;
The change will avoid confusion; or
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 should prejudice public interest.
(Republic v. CA, G.R. No. 88202, Dec. 14,
1998).
Q: What is the purpose of this Rule?

A: It is to appoint an administrator over the
properties of the absentee. This is proper only
where the absentee has properties to be
administered.
When a person disappears from his domicile his
whereabouts being unknown, and without having
left an agent to administer his property, or the
power conferred upon the agent has expired, any
interested party, relative or friend, may petition the
RTC of the place where the absentee resided before
his disappearance for the appointment of a person
to represent him provisionally in all that may be
necessary.
Note: If the absentee left no properties, such petition
is not necessary. (Reyes v. Alejandro, G.R. No. L-46187,
Jan. 16, 1986)
Note: Under Rule 108, change of name may either be

summary or adversary in nature. If the correction
sought to be made in the civil registrar is clerical, then
the procedure to be adopted is summary. If the
rectification affects the civil status, citizenship or
210
REMEDIAL LAW TEAM:

SPECIAL PROCEEDINGS
2. WHO MAY FILE A PETITION; WHEN TO FILE
Q: Who
absence
trustee?
A:
1.
2.
3.
4.
may file a petition for declaration of

and appointment of administrator or
Spouse present;
Heirs instituted in the will;
Relatives who will succeed by intestacy;
Those who have over the property of the
absentee some right subordinated to the
condition of his death. (Sec. 2, Rule 107)
Note: Rule 108, when all the procedural requirements

thereunder are followed, is the appropriate adversary
proceeding to effect substantial correction and
changes in the entries of civil register (Lee v. CA, G.R.
No. L-118387, Oct. 11, 2001).
Q: What are the requisites of adversarial

proceedings?
A:
1.
Q: When should a petition for declaration of

absence and appointment of administrator or
trustee be filed?
2.
A:
4.
1.
2.
3.
After 2 years:
a. From his disappearance and without
any news about the absentee; or
b. of the last news about the absentee.
After 5 years If he left an administrator
of his property. (Sec. 2, Rule 107)
R. CANCELLATION OR CORRECTION OF ENTRIES IN

THE CIVIL REGISTRY
Q: Who may file a petition for cancellation or
correction of entries?
A: Any person interested in any act, event, order or
decree concerning the civil status of persons which
has been recorded in the civil register, may file a
verified petition for the cancellation or correction
of any entry relating thereto, with the RTC of the
province where the corresponding civil registry is
located (Sec. 1).
Q: What is the nature of proceedings in Rule 108?
A: It is summary if the entries in the civil register
sought to be corrected are clerical or innocuous in
nature. However, where such entries sought to be
corrected or changed are substantial, the
proceedings are adversarial in nature. (Republic v.
Valencia, G.R. No. L-32181, Mar. 5, 1986)
Q: What is meant by appropriate adversarial
proceeding?
A: One which has opposing parties; contested as
distinguished from an ex parte application, one of
which the party seeking relief has given legal
warning to the other party, and afforded the latter
an opportunity to contest it. (Republic v. Valencia,
Ibid.)
5.
Proper petition is filed where the Civil

Registrar and all parties interested are
impleaded;
The order of hearing must be published
once a week for three consecutive weeks;
Notice must be given to the Civil Registrar
and all parties affected thereby;
The civil registrar and any person
interested, may within 15 days from
notice or from the last date of
publication, files his opposition thereto;
and
Full blown trial. (Republic v. Valencia,
supra.)
1. ENTRIES SUBJECT TO CANCELLATION OR

CORRECTION UNDER RULE 108, IN RELATION TO
RA 9048
Q: What are the entries subject to cancellation or
correction under Rule 108?
A:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Births;
Marriages;
Deaths;
Legal separations;
Judgments of annulments of marriage;
Judgments declaring marriages void from
the beginning;
Legitimations;
Adoptions;
Acknowledgments of natural children;
Naturalization;
Election, loss or recovery of citizenship;
Civil interdiction;
Judicial determination of filiation; and
Change of name. (Sec. 2)
Q: May the trial court issued an order declaring

the nullity of marriage under Rule 108 and change
the status from married to single?
A: No, it is proper only in ordinary adversarial
proceedings. (Lim v. Republic, G.R. No. 8932, May
31, 1957)

211

Q: Within what period may a petition for
correction or cancellation of entries be filed?
A: The law did not fix a period within which the
petition for correction under Rule 108 in relation to
Art. 412 of Civil Code may be filed. Accordingly,
such petition may be filed within 5 years from time
the petitioner discovered the error or mistake in
the civil registry, and not from the date the birth
certificate was registered in the civil registry. (Lee v.
CA, supra.)
Q: Celine files a petition for cancellation of the
birth certificate of her daughter Jeanie on the
ground of falsified material entries therein made
by Celines husband as the informant. The RTC sets
the case for hearing and directs the publication of
the order once a week for 3 consecutive weeks in a
newspaper of general circulation. Summons was
served on the Civil Registrar but there was no
appearance during the hearing. The RTC granted
the petition. Jeanie filed a petition for annulment
of judgment before the CA, saying that she was
not notified of the petition and hence, the decision
was issued in violation of due process. Celine
opposed saying that the publication of the court
order was sufficient compliance with due process.
Rule.
A: The petition for annulment of judgment before
the CA should be granted. Jurisdiction of the court
over a petition for cancellation of a birth certificate
requires reasonable notice to all interested parties
and also publication of the order once a week for 3
consecutive weeks in a newspaper of general
circulation. In this case, publication of the order is
insufficient because Jeanie, a directly concerned
party, was not given reasonable notice, hence,
denied due process. The lower court, therefore, did
not acquire jurisdiction. (Ceruila v. Delantar, G.R.
No. 140305, Dec. 9, 2005).
Alternative Answer:
It should not be granted. The publication of an
order of hearing under Section 4 of Rule 108 cured
the failure to implead an indispensable party. A
petition for correction is an action in rem, an action
against a thing and not against a person. The
decision on the petition binds not only the parties
thereto but the whole world. An in rem proceeding
is validated essentially through publication.
Publication is notice to the whole world that the
proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any
sort against the right sought to be established. It is
the publication of such notice that brings in the
whole as a party in the case and vests the court
with jurisdiction to hear and decide it (Republic v.
212
Kho, G.R. No. 170340, June 29, 2007; Alba v. CA,

G.R. No. 164041, July 29, 2005; Barco v. CA, G.R. No.
120587, Jan. 20, 2004). (2007 Bar Question)
Q: Helen is the daughter of Eliza, a Filipina, and
Tony, a Chinese, who is married to another
woman living in China. Her birth certificate
indicates that Helen is the legitimate child of Tony
and Eliza and that she is a Chinese citizen. Helen
wants her birth certificate corrected by changing
her filiation from "legitimate" to "illegitimate" and
her citizenship from Chinese" to "Filipino"
because her parents were not married. What
petition should Helen file and what procedural
requirements must be observed? Explain.
A: A petition has to be filed in a proceeding under
Rule 108 of the Rules of Court. A petition to change
the record of birth by changing the filiation from
legitimate to illegitimate and petitioners
citizenship from Chinese to Filipino does not
involve a simple summary correction which could
otherwise be done under the authority of R.A.
9048. Procedural requirements include: (a) filing a
verified petition; (b) naming as parties all persons
who have or claim any interest which would be
affected; (c) issuance of an order fixing the time and
place of hearing; (d) giving reasonable notice to the
parties named in the petition; and (e) publication of
the order once a week for 3 consecutive weeks in a
newspaper of general circulation. (2005 Bar
Question)
S. APPEALS IN SPECIAL PROCEEDINGS
1. JUDGMENTS AND ORDERS FOR WHICH APPEAL
MAY BE TAKEN
Q: What are the orders or judgments from which
appeal may be taken?
A: An interested person may appeal when such
order or judgment:
1.
2.
3.
4.
5.
Allows or disallows a will;

Determines who are the lawful heirs of a
deceased person, or the distributive share
of the estate to which such person is
entitled;
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;
Settles the account of an executor,
administrator, trustee or guardian;
Constitutes, in the proceedings relating to
the settlement of the estate of a
deceased person, or the administration of
REMEDIAL LAW TEAM:

SPECIAL PROCEEDINGS
6.
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;
Is the final order or judgment rendered in
the case, and affects the substantial rights
of the person appealing, except orders
granting or denying a motion for new trial
or for reconsideration (Sec. 1, Rule 109).
Note: A stranger having neither material nor direct

interest in a testate or intestate estate has no
right to appeal from any order issued therein.
(Panis v. Yangco, G.R. No. L-29460, Dec. 22, 1928)
A:
1.
Rule 40 (Appeal from MTC to RTC) By

filing a notice of appeal, record on appeal
and payment of appeal fees on questions
of law or fact or both;
2.
Rule 41 (Appeal from the RTC to CA in

exercise of its original jurisdiction) By
ordinary appeal by filing a notice of
appeal, record on appeal and payment of
appeal fees on questions of law or fact or
both;
3.
Rule 42 (Petition for review from the RTC

to the CA in exercise of its appellate
jurisdiction) By filing a notice of appeal,
record on appeal and payment of appeal
fees on questions of law or fact or both;
4.
Rule 45 (Appeal by certiorari to the SC)

By filing of verified petition for review on
certiorari and payment of fees which shall
raise questions of law only
XPN: Any party may raise questions
of fact in their appeal in cases of writ
of amparo, habeas data and
kalikasan.
5.
Rule 65 (Petition for certiorari) By filing

of verified petition for certiorari on the
ground that the court acted without or in
excess of jurisdiction or with grave abuse
of discretion.
2. WHEN TO APPEAL
Q: When should the appeal in special proceedings
be filed?
A:
Special Proceedings
Habeas Corpus
Writ of Amparo
Writ of Habeas Data
Writ of Kalikasan
PERIOD FOR APPEAL

30 days (Record on Appeal
required)
48 hours from service of
judgment
5 working days from date of
notice of judgment
5 working days from date of
notice of judgment
15 days from notice of
judgment or denial of motion
for reconsideration
Q: What are the orders that are not

appealable?
A:
1.
2.
3.
4.
Order directing the administrator to

take action to recover an amount due
to the estate.
Order made in administration
proceedings relating to the inclusion
or exclusion of items of property in
the inventory of executor or
administrator.
Order
appointing
a
special
administrator.
Order granting or denying a motion
for new trial or for reconsideration.
4. RULE ON ADVANCE DISTRIBUTION

Q: When can an advance distribution be made
despite a pending controversy in the settlement of
an estate?
A: Notwithstanding a pending controversy or
appeal in proceedings to settle the estate of a
decedent, the court may, in its discretion and upon
such terms as it may deem proper and just, permit
that such part of the estate as may not be affected
by the controversy or appeal be distributed among
the heirs or legatees, upon compliance with the
conditions set forth in Rule 90 of these rules. (Sec.
2)
3. MODES OF APPEAL
Q: What are the modes of appeal, how perfected
and their grounds?

213

SPECIAL PROCEEDINGS AT THE UNIVERSITY OF SANTO TOMAS

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

SPECIAL PROCEEDINGS AT THE UNIVERSITY OF SANTO TOMAS

Uploaded by

Copyright:

Available Formats

SPECIAL PROCEDINGS

IV. SPECIAL PROCEEDINGS

A: It is a remedy by which a party seeks to establish

Q: What is Special Proceeding?

NOTE: It is a proceeding in rem.

Special Civil Action

To protect or enforce a right or

Involves the establishment of a

Civil Action subject to specific

Initiated by a complaint, and

Initiated by a petition and parties

Heard by courts of general

Based on a cause of action

Not based on a cause of action

Ordinary rules apply primarily but

Issues are determined by law

Some special civil action have no

Q: What are the subject matters of special proceedings?

RTC- Gross value of the estate

NOTE: MTC jurisdiction is exclusive

If inhabitant (resident) of the

Ordinary escheat proceedings:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

UST GOLDEN NOTES 2011

Rules 9297; A.M.

Family Court In case of minors

Where the will was allowed or

Where the absentee resided before

Where the adopter resides

Where the adoptee resides

Family Court or the InterCountry Adoption Board

Where the adopter resides

Where petitioner resides or where

Where the child resides

RTC-Gross value of the estate

Where the petitioner resides or

Where petitioner or respondent

SC, CA, RTC, MTC in the province

Where the aggrieved party is

REMEDIAL LAW TEAM:

Family Court, CA, SC

RTC, SB, CA or SC or any justice

Writ of habeas data

RTC, SB, CA or SC or any justice

Where the petitioner resides or

Where petitioner or respondent

Where petitioner or respondent

Q: What is the publication requirement in special proceedings?

Publication of Order of Hearing

Once a week for 3 consecutive weeks

Once a week for 3 consecutive weeks

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

UST GOLDEN NOTES 2011

Q: Who should be notified in special proceedings?

A. SETTLEMENT OF ESTATE OF DECEASED

To whom notice must be given

Metropolitan Trial Court

Q: State the rule on venue in judicial settlement of

Gross value of the estate

REMEDIAL LAW TEAM:

v. Santiago, L- 1723, May 30, 1949); or by filing

Q: What constitutes residence?

Q: What is the remedy if Venue is improperly laid?