R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )

MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2

RULE 72 SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES

1. Special proceedings:
a. Settlement of estate of deceased persons
b. Escheat
c. Guardianship and custody of children
d. Trustees
e. Adoption
f. Rescission and revocation of adoption
g. Hospitalization of insane patient
h. Habeas corpus
i. Change of name
j. Voluntary dissolution of corporations
k. Judicial approval of voluntary recognition of minor natural children;
l. Constitution of family home
m. Declaration of absence and death
n. Cancellation of correction of entries in civil registry

2. Civil Action distinguished from Special Proceedings:

ACTION SPECIAL PROCEEDINGS

To protect or enforce a right, or to prevent To establish a status, right, or a particular
or redress a wrong fact
Initiated by Complaint Initiated by Petition
Definite Parties Definite petitioner, no definite adverse
party
Answer is filed Opposition is filed
Handled by court of general jurisdiction Heard by court of limited jurisdiction
Adversarial Not adversarial
Statute of Limitations applies No statute of limitations
15-day appeal period 30-day appeal period

3. Jurisdiction and Venue in Special Proceedings

a. Settlement of estate of deceased persons

i. RTC – Gross value of the estate exceeds P200,000/P400,000

ii. MTC – Gross value of the estate does not exceed P200,000/P400,000

 If resident – place where deceased resided at time of death

 If non-resident – place where deceased had estate

b. Escheat

i. Ordinary escheat proceedings: RTC

 If resident – place where deceased last resided

 If non-resident – place where he had estate

ii. Reversion of land to State for violation of Constitution / Laws: RTC where
land lies in whole or in part

iii. Unclaimed deposits (for 10 years): RTC of province where bank is located

 all banks located in 1 province where court is located may be made

parties defendant in 1 action.

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c. Guardianship and custody of children: Family Court

 If resident – place where minor/incompetent resides

 If non-resident – place where minor/incompetent has property

d. Trustees

i. RTC – Gross value of the estate exceeds P200,000/P400,000

ii. MTC – Gross value of the estate does exceed P200,000/P400,000

 If will allowed in the Philippines – court where will was allowed

 If will allowed outside the Philippines – court in place where property is
situated

e. Adoption: Regional Trial Court

 If domestic adoption – place where adopter resides

 If inter-country adoption – court who has jurisdiction over the adoptee

f. Rescission and revocation of adoption: Regional Trial Court

g. Hospitalization of insane patient: RTC in place where person alleged to be

insane is found

h. Habeas corpus
i. SC
ii. CA
iii. RTC (within its respective region)
iv. MTC (in absence of RTC judges in province/city)

Change of name

i. Judicial (Rules of Court): RTC in place where petitioner resides

ii. Administrative (RA 9048):

 Civil registar where entry is located or if applicant migrated: civil
registar in place where he resides
 Consul General: if applicant resides abroad

i. Voluntary dissolution of corporations: SEC

j. Constitution of family home: under the Family Code, it is deemed constituted

on a house and lot from the time it is occupied as a family residence

k. Declaration of absence and death: RTC in place where absentee resided

before his disappearance

l. Cancellation of correction of entries in civil registry

i. Judicial (Rules of Court): RTC in place where the civil registry is located

ii. Administrative (RA 1948):

 Civil registar where entry is located or if applicant migrated: civil

registar in place where he resides

 Consul General: if applicant resides abroad

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 R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
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SETTLEMENT OF ESTATE OF DECEASED PERSONS

RULE 73 VENUE AND PROCESS

1. When probate passes upon question of title to property:

a. Interested parties who are all heirs consents and 3rd parties not prejudiced;

b. Otherwise, only in a provisional manner, to determine whether property should be

included in the inventory, without prejudice to the final determination of title in a
separate action.

2. When probate courts can issues writs of execution:

a. To satisfy distributive shares of the devisees, legatees, and heirs in possession of

decedent’s assets;

b. To enforce payment of expenses in partition;

c. To satisfy costs when a person is cited for examination in probate proceedings.

d. To satisfy the claim in summary settlement proceedings of creditors or heirs who

appear within 2 years from the distribution.

RULE 74 SUMMARY SETTLEMENT OF ESTATES

1. When estate need not be judicially administered through an administrator or

executor:

a. Extrajudicial settlement;

b. Summary settlement of estate of small value (not exceeding P10,000)

2. Extrajudicial settlement

a. Does not require court intervention;

b. Value of estate is immaterial;

c. Allowed only in intestate succession;

d. Proper only where there are no outstanding debts of the estate at the time of
settlement;

e. Can be resorted to only at the instance and by agreement of all heirs.

 If heirs do not agree, they may resort to an action for partition

3. Requisites of a valid extrajudicial settlement:

a. Decedent dies intestate;

b. No outstanding debts of the estate at the time of the settlement;

c. Heirs are all of age or the minors are represented by their judicial guardians or
legal representatives;

d. Settlement is made in a public instrument duly filed with the register of deeds;

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e. Fact of settlement must be published in a newspaper of general circulation once

a week for 3 consecutive weeks.

4. Summary settlement of estates with small value:

a. Involves judicial adjudication in a summary proceedings;

b. Applies only when gross estate does not exceed P10,000;

c. Allowed in both testate and intestate estates;

d. Available even if there are debts as the court will make provisions for the
payment thereof.

RULE 75 PRODUCTION AND ALLOWANCE OF WILL

1. Probate of a will – juridical act whereby an instrument is adjudged valid and is

ordered to be recorded.

2. No will to pass property unless probated.

3. Custodian is a person chosen in advance and entrusted with the custody of the will.
It does not refer to a mere possessor of the will.

4. The act penalized in §4 (where the custodian and executor is subjected to a fine for
neglect) is a special statutory offense and is properly prosecuted upon complaint or
information as other criminal offenses created by law (US vs. Guimco)

RULE 76 ALLOWANCE OR DISALLOWANCE OF A WILL

1. Jurisdictional facts alleged in petition for probate:

a. Person died leaving a will;

b. In case of a resident, that he resided within the territorial jurisdiction of the court;
(in the case of non-resident, that he left an estate within such territorial
jurisdiction).

2. Grounds for disallowing will:

a. Not executed and attested as required by law;

b. Testator was mentally incapacitated to make a will or insane at the time of

execution;

c. Executed under duress, influence of fear, or threats;

d. Procured by undue and improper influence and pressure on the part of the
beneficiary or of some other person for his/her benefit;

e. Signature of testator was procured by fraud/trick and she/he did not intend
instrument to be will.

3. Differences between petition for probate filed by third persons, and by testator
himself.

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FILED BY THIRD PERSON FILED BY TESTATOR HIMSELF

Notice published once a week for 3 Newspaper publication not required
consecutive weeks
Personal notice given to designated/known Personal notice sent only to testator’s
heirs, legatees and devisees compulsory heirs

4. Contents of petition for probate:

a. Jurisdictional facts;

b. Names, ages and residences of heirs, legatees, and devisees;

c. Probable value and character of property of estate;

d. Name of person for whom letters are prayed; and

e. If will has not been delivered to the court, the name of the person having custody
of it.

5. How will is proven as lost or destroyed:

a. Prove that will:

i. Was in existence at time of testator’s death, OR
ii. Was fraudulently or accidentally destroyed in testator’s lifetime without his
knowledge;
AND

b. Provisions of will must be clearly and distinctly proven by at least 2 credible

witnesses

RULE 77 ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF

ESTATE THEREUNDER

1. In re-probate of will proven abroad, proponent must prove:

a. Testator was domiciled in the foreign country;

b. Will has been admitted to probate in such country;

c. Foreign country was, under the laws of such country, a probate court with
jurisdiction;

d. Law on foreign probate procedure and proof of compliance therewith;

e. Legal requirements in said country for valid execution of will.

RULE 78 LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED

1. The following are disqualified from serving as executors or administrators:

a. A minor;

b. A non-resident (of Phils.)

c. A person unfit in the opinion of the court to execute the duties of his trust
2. Requisites for a person to be appointed executor or administrator:

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a. Accepts the trust

b. Gives a BOND

c. Competent

RULE 79 OPPOSING ISSUANCE OF LETTERS TESTAMENTARY, PETITION AND CONTEST FOR

LETTERS OF ADMINISTRATION

1. Contents of petition for issuance of Letters of Administration:

a. Jurisdictional facts;

b. Names, ages and residences of heirs, and creditors;

c. Probable value and character of property of estate; and

d. Name of person for whom letters are prayed.

NOTE: Essentially the same as contents of petition for probate, except: (1) latter has
an additional requirement (the last; see Rule 76); and (2) in the latter, no need to name
creditors in the petition.

RULE 80 SPECIAL ADMINISTRATOR

Special Administrator – appointed when there is a delay in granting letters

testamentary or of administration by any cause, including an appeal from the allowance
or disallowance of the will.

RULE 81 BONDS OF EXECUTORS AND ADMINISTRATOR

1. Undertakings of bond of Executor/Administrator:

a. Make and return a complete inventory of the property of the estate which has
come to his possession or knowledge, or the possession of any person for him,
within 3 months;

b. To administer the property of the estate according to the Rules (if administrator)
or according to the will (if executor);

c. To render an account within 1 year and at any other time required by the court;
and

d. Perform all orders of the court.

RULE 82 REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS

AND ADMINISTRATION

1. Grounds for removal of executors or administrators:

a. Neglects to render account and settle the estate according to law;

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b. Failure to perform order or judgment of the court or duty prescribed by the rules;

c. Absconds;

d. Becomes insane;

e. Incapable or unsuitable to discharge trust.

RULE 83 INVENTORY AND APPRAISAL. PROVISIONS FOR SUPPORT OF FAMILY

1. Properties not to be included in inventory as assets of the estate:

a. Wearing apparel of surviving spouse and minor children;

b. Marriage bed and bedding; AND

c. Provisions and articles which will necessarily be consumed in the subsistence of

the deceased’s family.

RULE 84 GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS

1. General Powers and Duties of Executors and Administrators:

a. Have access to partnership books and property;

b. Maintain in tenantable repair the houses and other structures and fences
belonging to the estate and deliver the same to the heirs and devisees when
directed to do so by the court; AND

c. Right to the possession and management of the real and personal estate so long
as it is necessary for the payment of debt and expenses of administration.

2. How right to have access to partnership books and property enforced:

a. On the written application of executor or administrator

b. Court having jurisdiction of the estate may

c. Order any such surviving partner or partners to:

i. Freely permit the exercise of the rights
ii. Exhibit the books, papers, and property

d. Court may also punish any partner failing to do so for contempt

RULE 85 ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS

1. Not proper expenses of administration which are not chargeable to estate:

a. Services rendered by administrator which are not beneficial to the estate in favor
of an heir;

b. Premiums for her/his bond;

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c. Expenses for repair of property of the estate being used and occupied by him;

d. Expenses for keeping ordinary records and receipts involved in his

administration;

e. Losses incurred in conduct of business with use of funds of the estate.

2. Options of attorney to collect attorney’s fees from estate:

a. Sue administrator/executor in the latter’s personal capacity (who may then

include any fees so paid in his account); OR

b. File a petition in the testate/intestate proceedings asking the court, after notice to
all interested persons, to allow his claim and to direct the executor/administrator
to pay it as an expense of administration.

RULE 86 CLAIMS AGAINST ESTATE

1. Notice for filing of claims:

a. Published once a week for 3 successive week in newspaper of general

circulation;

b. Posted:
i. In 4 public places in PROVINCE of last residence of decedent;

ii. In 2 public places in MUNICIPALITY of decedent’s last residence.

2. Claims which must be filed with the probate court:

a. All claims for money against decedent arising from contract;

b. Claims for funeral expenses and for the last illness;

c. Judgment for money.

3. Time for filing of claims:

Must be filed within the time specified by the court in its notice, which period
shall not be less than 6 months nor more than 12 months from the date of the first
publication of the notice. HOWEVER, at any time before an order of distribution is
entered, a creditor who failed to file his claim on time may, upon showing good
cause, ask the court to allow him to file his claim. The court may then allow him to
file such claim within a time which shall not exceed 1 month.

4. Alternative remedies available to mortgage creditor upon death of mortgagor:

a. Abandon security and prosecute claim in probate court;

b. Foreclose mortgage judicially; and recover deficiency thru claim in probate court;

c. Rely solely on mortgage or security and foreclose the same within statute of
limitations, without the right to recover the deficiency

RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

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1. Actions which may be brought against the executor or administrator:

a. To recover real or personal property or an interest therein;

b. To enforce a lien thereon;

c. To recover damages for an injury to person or property.

2. Requisites for creditor (instead of the executor/administrator) to be able to file

an action to recover property fraudulently conveyed by the decedent:

a. There is a deficiency of assets in the hands of the executor/administrator for the

payment of the debts and expenses;

b. The deceased in his lifetime had made (or attempted) a fraudulent conveyance of
his property with intent to defraud his creditors, or to avoid any right, debt or duty,
or had made any such conveyance which would be void as against his creditors;

c. The subject of the conveyance would be liable to attachment by any of the

creditors during the decedent’s lifetime;

d. The executor/administrator has shown to have no desire or interest to file the

action, or has failed to do so within a reasonable time;

e. Leave of court is obtained;

f. A bond is filed by the creditor to indemnify the exec/admin against all costs and
expenses incurred by reason of the action; and

g. The action is brought in the name of the exec/admin.

 HOWEVER, if the exec/admin was himself the transferee of the fraudulent

conveyance, the last 3 requisites are not required, and the action is brought in
the name of all the creditors.

RULE 88 PAYMENT OF THE DEBTS OF THE ESTATE

1. Order of payment of debts:

a. From portion of property designated in the will;

b. From personal property not disposed of by will;

c. From real property not disposed of by will.

RULE 89 SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT

1. Petition for sale or encumbrance of real property:

a. Personal property is not sufficient to pay debts, expenses of administration and

legacies, OR

b. Sale of such personalty may injure business or interests of persons interested in

the estate

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c. Testator did not make sufficient provisions for payment of debts, expenses of
administration and legacies

d. Sale or encumbrance would be beneficial to parties interested in the estate.

2. Reasons to sell personal property:

a. Payment of debts, expenses of administration and legacies in the Philippines

b. Sale would be beneficial to persons interested in the estate;

c. Payment of debts, expenses and legacies involved in settlement of estate of

decedent in a foreign country.

RULE 90 DISTRIBUTION AND PARTITION OF THE ESTATE

1. Remedy of heir who has not received his share of the estate:

a. If excluded from the proceedings:

move for reopening of the proceedings before the order declaring the same closed
has become final and executory (after 30 days);

b. If not excluded, but only has not yet received his distributive share under the
project of partition:

remedy is not to move for reopening (since proceedings are only deemed closed
upon actual distribution), but to file a motion for execution within the reglementary
period (5 years).

RULE 91 ESCHEATS

1. Requisites for petition for escheat

a. Person died intestate;

b. Person died leaving no heirs; AND

c. Person died leaving properties in the Philippines

2. Notice of hearing to be published once a week for 6 weeks;

Date of hearing shall be not more than 6 months from entry of order fixing date of
hearing.

3. Disposition of escheated property:

a. If real – to municipalities or cities located;

b. If personal – (1) To city or municipality where decedent last resided in Phils;

(2) If decedent never resided in Phils, then to municipality or city

where located.
4. Devisee, legatee, heir, or any other person entitled to the estate may file a claim with
the court within 5 years from date of the judgment.

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GENERAL GUARDIANS AND GUARDIANSHIP

RULE 92 VENUE

1. Venue of guardianship proceedings:

in RTC of province where the minor or incompetent resides, or if non-resident,

in any province wherein his property is located

 NOTE: “Residence” means “domicile”.

RULE 93 APPOINTMENT OF GUARDIANS

1. Who may petition for appointment of guardian:

a. Any relative, friend or other person on behalf of the minor/incompetent;

b. The minor himself, if 14 or over.

2. Contents of petition:

a. Jurisdictional facts; (minority/incompetency and his domicile)

b. Minority or incompetency

c. Names, ages and residences of the relatives of the minor/incompetent, and of

the persons having him in their care;

d. Probable value and character of property of estate; and

e. Name of person for whom letters or guardianship are prayed

3. Notice of date and place of hearing to be given to all persons named in the petition
residing in the province, and to the minor himself if over 14 (NOTE: not “14 or over”)

RULE 94 BONDS OF GUARDIANS

1. Undertaking of bond of guardian:

a. Make and return a complete inventory of the property of the estate which has
come to his possession or knowledge, or the possession of any person for him,
within 3 months;

b. To faithfully execute the duties of his trust;

c. To render a true and just account; and

d. Perform all orders of the court.

2. Bond may be proceeded against in the same or separate proceeding for the use and
benefit of the ward, or of any other person legally interested in the estate.

RULE 95 SELLING AND ENCUMBERING PROPERTY OF WARD

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1. When real property of ward may be sold or encumbered:

a. When income of ward’s estate is insufficient to maintain ward and his family (if
incompetent), or to maintain and educate the ward (if minor);

b. When it appears beneficial to the ward

 Guardian shall then file a verified petition setting forth such facts and praying for
the authority to make such sale or encumbrance

2. Order granting the authority to sell shall last for only 1 year.

RULE 96 GENERAL POWERS AND DUTIES OF GUARDIANS

1. Every guardian, other than the ward’s parents, shall be allowed the amount of his
reasonable expenses, and compensation which shall not exceed 15% of the NET
income of the estate.

RULE 97 TERMINATION OF GUARDIANSHIP

1. Grounds for removal of a guardian:

a. Insanity;

b. Becomes incapable of discharging his trust;

c. Waste/mismanagement of estate;

d. Failure to make an account or inventory within 30 days after it has become due
(inventory: due within 3 months from appointment and annually thereafter;
account: due annually)

 Grounds are EXCLUSIVE

RULE 98 TRUSTEES

1. Venue for petitions for appointment of trustees:

a. If trustee is necessary to carry into effect the provisions of a will, then in the RTC
in which the will was allowed (assuming allowed in the Philippines);

b. Otherwise, then in the RTC of any province in which some property affected by
the trust is situated

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RULE 99 ADOPTION AND CUSTODY OF MINORS*

1. Venue of Adoption proceedings:

Family Court of the province where the minor resides.

2. Who may adopt:

a. Filipino citizen

i. At least 18

ii. Capacity
(1) Full civil capacity and legal rights
(2) Good moral character
(3) No conviction of crime involving moral turpitude
(4) Emotionally and psychologically capable of caring
(5) Able to support in keeping with means of the family

iii. At least 16 years older than the adoptee

 Exceptions:
(1) If the adopter is the biological parent of the adoptee
(2) If the adopter is the spouse of the adoptee’s parent
(3) If the adopter is the sibling of the adoptee (Article IV, §7 of the IRR)
b. Alien

i. Possesses the same qualifications as a Filipino (i to iii of a)

ii.His country has diplomatic relations with the Philippines

iii.3-year continuous residence – before filing and maintains residence until the
decree is entered

iv.Certification by his government that

(1) He has the legal capacity to adopt
(2) The adoptee is allowed entry to his country as his son/daughter

 Exceptions to iii and iv:

(1) If the adopter is a former Filipino citizen seeking to adopt a relative within
the fourth degree of consanguinity/affinity
(2) If the adopter seeks to adopt the legitimate son/daughter of his/her
Filipino spouse
(3) If the adopter is married to a Filipino citizen and seeks to adopt jointly with
spouse a relative within 4th degree of consanguinity/affinity of the spouse

c. Guardian

 After termination of guardianship and clearance of financial accountabilities

d. Husband and Wife

 General Rule: Joint adoption (joint parental authority)

Exceptions:

a. Adoption of legitimate son/daughter of the spouse

b. Adoption of one’s own illegitimate son/daughter

*
As modified by R.A. no. 8552 or the Domestic Adoption Act

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 Consent of other spouse needed

c. Spouses are legally separated

3. Contents of petition:

a. Jurisdictional facts;

b. Qualifications of the adopter;

c. That adopter is not disqualified by law;

d. Name, age and residence of the adoptee and his relatives or of the persons who
have him under their care;

e. Probable value and character of the estate of the adoptee.

4. Who may be adopted

a. Below 18 and declared available for adoption

b. Legitimate son/daughter of one spouse

 Even if beyond 18

c. Illegitimate son/daughter
 Even if beyond 18

d. One of legal age but treated as own child since minority

e. Child with rescinded adoption

f. Child whose parents are dead

 “6-month bar” to any proceedings

5. Whose consent needed:

a. The adoptee if 10 years old or up

b. Biological parents/legal guardian/proper government instrumentality;

c. Legitimate and adopted children, 10 years or over, of adopter and adoptee, if

any;

d. Illegitimate children of adopter, 10 years or over, if living with adopter and the
latter’s spouse, if any.

e. Spouse, if any, of person adopting and to be adopted

6. Process (under the Domestic Adoption Act)

a. Case study
i. Adoptee
ii. Biological Parents
iii. Adopter

 Duty of the social worker to confirm identity and register the child

 Discretion of DSWD to recommend denial of petition when necessary

 The social workers of the courts may undertake the case studies in lieu of the
DSWD social worker since §11 of the Domestic Adoption Act, which

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enumerates the people who may undertake the case studies, is NOT
exclusive. (A.M. no. 00-8-03-SC, effective September1, 2000)

b. Supervised trial custody

i. 6-months bonding

ii. Temporary parental authority

iii. Period may be reduced

 Exception: Alien adopter (full 6 months)

Exception to Exception: Relative adoption

c. Decree of adoption

 After publication

 No opposition

 Evidence considered

 Effective date: As of filing of original petition (even if petitioner dies before

issuance)

d. Amendment of certificate of birth

 Original birth certificate canceled

 New birth certificate issued (without notation of amended issue)

e. Confidentiality

 Public not allowed in proceedings

 Records confidential

 Court order needed for disclosure

RULE 100 RESCISSION AND REVOCATION OF ADOPTION

1. Who may petition?

Adoptee only.

2. Grounds:

a. Repeated physical and verbal maltreatment

b. Attempt on life

c. Sexual assault/violence

d. Abandonment and failure to comply with parental obligation

3. Remedy of adopter against the erring adoptee

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a. Disinheritance

4. Effects of rescission:

a. Restoration of previous legal custody (for minors)

b. Extinguishment of reciprocal rights

c. Cancellation of amended birth certificate and restoration of original birth

certificate

 Vested rights respecting criminal sanctions remain.

RULE 101 PROCEEDINGS FOR HOSPITALIZATION OF INSANE PERSONS

1. Who files a petition for commitment of an insane person:

Secretary of Health
2. Where petition is filed:

RTC of the province where the person alleged to be insane may be found.

3. Cases petition should be filed:

in all cases where in the opinion of the Secretary of Health, such confinement is:

a. for the public welfare

b. for the welfare of a person who in the Secretary’s judgment is insane, and such
person or the one having charge of him is opposed to his being taken to a hospital or
other placed for the insane.

RULE 102 HABEAS CORPUS

1. The writ of habeas corpus is a 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 caption and detention, to do, submit to, and receive
whatever the court or judge awarding the writ shall consider in that behalf.

2. The writ of habeas corpus may be obtained in two instances:

a. deprivation of liberty - public officers (police)

b. rightful custody is withheld - private persons detaining (custody of minor child)

3. Writ of habeas corpus may also be availed of as a consequence of a judicial

proceeding:

a. There has been a deprivation of a constitutional right resulting in restraint of

person;

b. The court had no jurisdiction to impose the sentence;

c. An excessive penalty has been imposed, the sentence being void as to the
excess.
2. Contents of petition:

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must be signed and verified, and shall set forth

a. That the person in whose behalf the application is made is imprisoned or

restrained of his liberty

b. The officer or name of the person by whom he is imprisoned or restrained;

c. Place where he is imprisoned or restrained, if known;

d. Copy of the commitment or cause of the detention, if it can be procured without

impairing the efficiency of the remedy (if no legal authority for imprisonment, such
fact shall appear)

3. Contents of the Return of the Writ:

a. Whether he has the party under his custody, power or restraint;

b. If he does, the authority and cause upon which he is held, together with a copy of
the writ, order, execution or other process;

c. If party is in his custody and is not produced, the gravity of his sickness or
infirmity by reason of which he cannot be produced; and

d. If he previously had custody, and has transferred the same to another, then state
to whom, at what time, for what cause, and by what authority such transfer was
made.

4. If it appears that that the prisoner is under custody under a warrant of commitment in
pursuance of law, the return shall be prima facie evidence of the cause of the
restraint. Otherwise, the return shall be only considered as a plea of the facts set
forth, and the party claiming custody must prove the same. Therefore, in the former
case, failure to file a reply to the Return warrants the dismissal of the petition. This is
because unless the allegations are controverted, they are deemed to be true and
admitted, the return being prima facie evidence of the cause of the restraint.

5. PRELIMINARY CITATION – where a person detained under governmental authority and the
illegality of his detention is not patent from the petition for the writ, the court may
issue a citation to the government officer having the person in her/his custody to
show cause why the writ should not issue.

PEREMPTORY WRIT – issued when the cause of detention appears to patently illegal and
the non-compliance therewith is punishable

6. Elepante vs. Madayag:

An appeal in Habeas Corpus proceedings should be perfected (i.e. by filing

Notice of Appeal) within 48 hours, compliance with which is mandatory and
jurisdictional. In counting the 48 hours, the date on which the decision was
promulgated is not counted, and the period starts to run the following day

RULE 103 CHANGE OF NAME

1. Venue –

RTC of province where petitioner resides

2. Contents of petition

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a. That petitioner is a bona fide resident of the province for at least 3 years prior to
the date of the filing of the petition

b. Cause for which the change of name is sought

c. Name asked for (§2)

d. All names and aliases of petitioner (Republic vs. Zosa)

3. Notice of hearing published once a week for 3 consecutive weeks.

4. Date of hearing:

cannot be held within 30 days before an election, or within 4 months after last
publication

4 months 30 days
Last publication Hearing Election

Hearing cannot be scheduled within these periods

5. Title of Petition: Must include name, aliases, and name asked for. Example: “In
Re: Petition for Change of Name of X, alias Y, to Z. X, Petitioner.

6. Publication: must reproduce title of the petition (see above), and contain correct
information as to:

a. Name or names of petitioner;

b. Cause for the change of name;

c. Name asked for.

 Failure to comply with above requirements renders proceedings null and void

RULE 104 VOLUNTARY DISSOLUTION OF CORPORATION

*repealed by Sections 118 and 119 of the Corporation Code

RULE 105 JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL

CHILDREN

Recognition of natural children (art. 278,NCC)

 Only evidence accepted

a. Record of birth

b. Will

c. Statement before court of record

d. Any authentic writing

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RULE 106 CONSTITUTION OF FAMILY HOME

*amended by Articles 152 and 153 of the Family Code.

RULE 107 ABSENTEES

1. Contents of petition for appointment of representative, or for declaration of

absence and appointment of trustee or administrator:

a. Jurisdictional facts;

b. Names, ages, and residences of heirs instituted in the will (a copy of which must
be presented) and of the intestate heirs;

c. Names and residences of creditors and other persons with adverse interests over
the properties of the absentee;

d. Probable value, location and character of the property of the absentee.

2. Notice of hearing:

published once a week for 3 consecutive weeks, and personal notice sent to
all known heirs, legatees, devisees, creditors and other interested persons at least
10 days before the hearing.

RULE 108 CANCELLATION AND CORRECTION OF ENTRIES IN CIVIL REGISTRY

1. Venue for petitions for cancellation/correction of entry in Civil Registry:

RTC of province where the corresponding civil registry is located.

2. Parties to proceedings:

a. The civil registrar AND

b. All persons who have or claim any interest which would be affected thereby

EXTRA: RA 9048 AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL
GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME
OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER

1. Scope:

a. Clerical / typographical errors

b. Change of first name / nickname

2. Definition of “Clerical or Typographical error”:

a mistake committed in the performance of clerical work in writing, copying,

transcripting or typing an entry in the civil register that is harmless and innocuous, such
as misspelled name or misspelled place of birth or the like, which is visible to the eyes,
or obvious to the understanding and can be corrected or changed only by reference to
other existing record or records

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3. Who may file petition:

any person having direct and personal interest in the correction or change

4. Where to file petition:

a. With the local civil registry office of the city or municipality where the record being
sought to be corrected or changed is kept

b. if petitioner has already migrated to another place in the country and it would not
be practical for such party to appear before the local civil registrar keeping the
documents to be corrected or changed: With the local civil registry of the place
where the interested party is presently residing or domiciled

c. if petitioner resides or domiciled in foreign countries: With nearest Phil. Consulate

5. Petition may be availed of only once

6. Grounds for change of first name:

a. First name is ridiculous, tainted with dishonor or extremely difficult to write or

pronounce

b. New first name or nickname has been habitually and continuously used by the
petitioner and he has been publicly known by that first name or nickname in the
community

c. Change will avoid confusion

7. Form and contents of petition:

a. in the form of an affidavit, subscribed and sworn to before any authorized person

b. set forth fact necessary to establish merits

c. show affirmatively that petitioner is competent to testify to the matters stated

d. state:

i. the particular erroneous entry which are sought to be corrected

ii. the change sought to be made

e. supported by:

i. a certified true machine copy of the certificate or of the page of the registry
book containing the entry or entries sought to be corrected or changed

ii. at least 2 public or private documents showing the correct entry or entries
upon which the correction or change shall be based

iii. other relevant documents

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8. Differences between RA 9048 and Rule 108

RA 9048 RULE 108

Administrative proceeding Summary judicial proceeding
Affidavit is filed Petition is filed
Penalty clause No penalty clause
Publication requirement: once a week for 2 Publication requirement: 3 consecutive
consecutive weeks weeks
Posting in conspicuous place No posting
Change of name is based on 3 Change of name is to correct clerical /
enumerated grounds innocuous errors

RULE 109 APPEALS IN SPECIAL PROCEEDINGS

1. Appeals in special proceedings may be taken from the following

orders/judgments:

a. Allowance/disallowance of wills;

b. Determination of lawful heir or distributive share of the estate to which such

person is entitled;

c. Allowance/disallowance of any claim against the estate of a deceased person or

any claim presented on behalf of the estate to offset claim against it;

d. Settlement of account of executor, administrator, trustee, or guardian;

e. Constitutes, in proceedings relating to settlement of estate or administration of a

trustee or guardian, a final determination in the lower court of the rights of the
party appealing, EXCEPT that no appeal is allowed from appointment of special
administrator.

f. Final order or judgment rendered in case and affects substantial rights of person
appealing UNLESS it be an order granting or denying a motion for new trial or
motion for reconsideration.

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