SPECIAL PROCEEDINGS

Bar Review Guide Justice Magdangal M. de Leon 1. Distinction between civil action and special proceedings a. Civil action action by which a party sues another for enforcement or protection of a right, or prevention or redress of a wrong. b. Special proceeding remedy by which a party see s to establish a status, right or a particular fact. !. Nature of special proceedings initially non"adversarial in nature# in the course of proceedings, there may be oppositors. GENERAL PRO ISION Rule 72 Subject matter and Applicability of General Rules Sec. 1. Subject matter of special proceedings. Settlement of *state of +eceased ,ersons Guardianship of 1inors Guardianship of 3ncompetents 0doption and Custody of 1inors 4rustees 5ospitali6ation of 3nsane ,ersons 5abeas Corpus Change of 2ame 7oluntary +issolution of Corporations 8+eemed repealed by the Corporation Code, 4itle 937, Secs. 11$"1!!' :udicial 0pproval of 7oluntary Recognition of 1inor 2atural Children Constitution of ;amily 5ome 8+eemed repealed by the ;amily Code, 0rts. !&!"!&%' 0bsentees Cancellation or Correction of *ntries 0ppeals in Special ,roceedings

1. Rules $%"$& ' !. Rules $(")1 ' %. Rules )!")( ' -. Rules )$"./ ' &. 0.1. 2o. /%"/!"/&"SC (. Rules .!".$ $. 0.1. 2o. /!"/("/!"SC ). Rule .) .. Rule 1/1 1/. Rule 1/! 11. Rule 1/% 1!. Rule 1/-

1%. Rule 1/& 1-. Rule 1/( 1&. Rule 1/$ 1(. Rule 1/) 1$. Rule 1/.

Special Proceedings !nder arious Laws

1. Summary proceedings under the ;amily Code !. 0ctions mentioned in the ;amily Courts 0ct of 1..$ 8R0 )%(.'

declaration of absolute nullity of void marriages and annulment of voidable marriages legal separation provisional orders on support, custody of minor children and administration of common property violence against women and their children and protection orders Child = >outh ?elfare Code 8,+ 1/)%' Child 0buse 0ct 8R0 $(1/' Child *mployment 0ct 8R0 $(&)' declaration of status as abandoned, dependent or neglected children voluntary or involuntary commitment of children suspension, termination or restoration of parental authority

%. ,roceedings under< -. &. (. $. ).

+omestic and 3nter"country adoption ,etition for corporate rehabilitation ,etition for writ of amparo ,etition for writ of habeas data 0rbitration Rules in civil actions applicable to special proceedings

Sec. 2. Applicability of rules of civil actions. In the absence of special rules, the rules provided for in ordinary actions shall be, as far as practicable, applicable to special proceedings. 1. Rule 1$ governing dismissal of actions by plaintiff in civil actions 8Ventura vs. Ventura, Sept. !-, 1.(.' !. Rules regarding< - preparation, filing and service of applications, motions, and other papers - omnibus motions - subpoena - computation of time - motion for new trial - discovery - trial before commissioners - procedure of appeal 8Fernandez vs. Maravilla, 1/ SCR0 &). @1.(-A' %. Rule %% regarding Budgment on demurrer to evidence 8Matute vs. CA, !( SCR0 $() @1.(.A' Recent "urisprudence 3n the absence of special provisions, rules in ordinary actions may be applied in special proceedings as much as possible and where doing so would not pose an obstacle to said proceedings. 2owhere in the Rules of Court does it categorically say that rules in ordinary actions are inapplicable or merely suppletory to special proceedings. ,rovisions of the Rules of Court reCuiring a certification of non"forum shopping for complaints and initiatory pleadings, a written eDplanation for non"personal service and filing, and the payment of filing fees for money claims against an estate would not in any way obstruct probate proceedings, thus, they are applicable to special proceedings such as the settlement of the estate of a deceased person. 8 he!er versus "state of Alice he!er, G.R. 2o. 1&$.1! +ec 1%, !//$'

A.

Settlement Process

of

Estate

of

Deceased

Persons,

Venue

and

0rt. $$$, Civil Code rights to succession are transmitted from the moment of death of the decedent.

4his is only from the substantive aspect. ;rom the ,REC*+FR0G aspect, there are certain procedures that must be observed before actual transmission of the property, but rights of the heirs retroact from the moment of death. Recent "urisprudence 4he right of respondentHs predecessors over the subBect property is more than sufficient to uphold respondentHs right to possession over the same. RespondentHs right to the property was vested in her along with her siblings from the moment of their fatherHs death. 0s heir, respondent had the right to the possession of the property, which is one of the attributes of ownership. Such rights are enforced and protected from encroachments made or attempted before the Budicial declaration since respondent acCuired hereditary rights even before Budicial declaration in testate or intestate proceedings.8#unyi versus Factor. G.R. 2o. 1$!&-$, :une %/, !//.'

1. Which court has jurisdiction

Settle#ent of estate 4he determination of which court eDercises Burisdiction over matters of probate depends upon the GRESS 70GF* of the estate of the decedent. Rule $%, Sec. 1 is deemed amended by B, 1!., as amended by R0 $(.1 $Li% vs. CA, G.R. 2o. 1!-$1&, :anuary !-, !///, %!% SCR0 1/!A', 5ence, the court may be the 14C or R4C. $inds of settle#ent based on t%e &OR' of settle#ent( 1. *DtraBudicial settlement 8Rule $-, Sec. 1' !. Summary settlement of estates of small value 8Rule $-, Sec. !' %. :udicial settlement through letters testamentary or letters of administration with or without the will anneDed 8Rules $%, $&"./'

2.

Venue in judicial settlement of estates

Rule 73 V !" A!# $R%& SS Sec. 1. '(ere estate of deceased persons settled) 1. 3f residing in ,hilippines at time of death, whether citi6en or not, court of ,G0C* E; R*S3+*2C*. !. 3f residing in a foreign country court of 02> ,G0C* ?5*R* 5* 50+ *S404*. %. Court first ta ing cogni6ance of settlement of estate of a decedent shall eDercise Burisdiction 4E 45* *9CGFS3E2 of all other courts. " subBect to preferential Burisdiction of court where 4*S404* proceedings are filed. -. :urisdiction assumed by a court depending on " place of residence of decedent, or " location of estate shall 2E4 B* CE24*S4*+ in a suit or proceeding, eDcept in an appeal from that court, or when want of Burisdiction appears in the record NO*ES(

1. 4erm IresidesJ refers to Iactual or physicalJ residence, as distinguished from Ilegal residenceJ or Idomicile.J

4here is a distinction between IresidenceJ for purposes of election laws and IresidenceJ for purposes of fiDing the venue of actions. 3n election cases, IresidenceJ and IdomicileJ are treated as synonymous terms, that is, the fiDed permanent residence to which when absent, one has the intention of returning. 5owever, for purposes of fiDing venue under the Rules of Court, the IresidenceJ of a person is his personal, actual or physical habitation, or actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency. 5ence, it is possible that a person may have his residence in one place and domicile in another. 8 an Luis vs. an Luis, G.R. 2o. 1%%$-%, ;ebruary (, !//$' !. Sec. 1, Rule $% prescribing court where decedentHs estate shall be settled 8a' place of residence or 8b' where his estate is located, relates to 7*2F* and not Burisdiction. %. ?here two proceedings filed, one intestate, the other testate illustrative cases on which courts should have IBurisdictionJ< &'#"&( V . L"')I*A 81!. SCR0 %%' intestate in C;3 1anila Branch !/, testate 8reprobate' in C;3 1anila, Branch %). Ruling< priority to second branch of same court 8C;3 1anila'. a. ,robate of will 102+04ER>" anomalous that estate of person who died testate should be settled in intestate proceedings. b. 3ntestate case should be CE2SEG3+04*+ with testate proceeding " :udge assigned to testate proceeding should continue hearing the two cases. +&IA&(" V . CFI 'F )",&' 'CC. 8%% SCR0 !&!' intestate in 2egros court, testate in 1anila court. Ruling< priority to first court. ,etitioner in 1anila court should have submitted will for probate to 2egros court, either in separate special proceeding or motion. 4estate proceeding ta es precedence over intestate proceeding. 3f in the course of intestate proceeding, it is found that decedent left a will, proceeding for probate of will should R*,G0C* intestate proceeding. C+")C' V . CA 8&% SCR0 %(/ @1.$%A' intestate in Cebu court, testate in KC court. Ruling< priority to second court. ;irst court, upon learning that petition for probate has been presented in another court, may +*CG32* 4E 40L* CEG23M02C* of and 5EG+ 32 0B*>02C* petition before it, and instead +*;*R to second court. 3f the will is admitted to probate, it will definitely +*CG32* to ta e cogni6ance. *Dplain difference between Friarte and Cuenco rulings 3n Friarte, there was showing that petitioner in probate proceeding new before filing of petition in 1anila that there was already intestate proceeding in 2egros. Sec. 2. '(ere estate settled upon dissolution of marriage 0 creditor cannot sue surviving spouse of a decedent in an ordinary proceeding for collection of sum of money chargeable against the conBugal property. ,roper remedy file a claim in the settlement of estate of the decedent. Reason< upon death of one spouse, powers of administration of surviving spouse ceases and is passed to administrator appointed by probate court in the settlement proceedings. 8Alipio vs. CA, %-1 SCR0 --1 @!///A'

3. Extent of jurisdiction of probate court

Probate court is of li#ited "urisdiction 1. ,robate court cannot adBudicate or determine title to properties claimed to be a part of the estate and eCually claimed as belonging to outside parties. !. 3t can only determine whether or not they should be included in the inventory or list of properties to be administered by the administrator.

%. ,robate court can only pass upon Cuestions of title provisionally for the purpose of determining whether a certain property should or should not be included in the inventory. -. ,arties have to resort to an ordinary action for final determination of conflicting claims of title. C0S*S< Vda. de &odriguez vs. CA, .1 SCR0 &-/# -astor vs. CA, 1!! SCR0 ))&# -ereira vs. CA, 1$- SCR0 1&- . Separate civil action for Cuieting of title " where issue or ownership of properties eDcluded from the inventory is finally determined 8 -obre vs. ,onong, 1-) SCR0 &&% @1.)$A'. *9C*,43E2< ?here interested parties are all heirs and rights of third parties are not impaired, probate court can decide Cuestion of ownership 8 Coca vs. -angilinan, )1 SCR0 !$) @1.)$A'. ?ith consent of all the parties, without preBudice to third persons 8 (rinidad vs. CA, !/! SCR0 1/( @1..1A'.

4. Powers and duties of probate court

5owever, probate court has Burisdiction to 8a' determine heirs separate action for declaration of heirs not proper 8 olivio vs. CA, 1)! SCR0 11. @1../A' and 8b' distribute estate. 3n the eDercise of probate Burisdiction. the court may issue warrants and process necessary to compel the attendance of witnesses or to carry into effect their orders and Budgments, and all other powers granted to them by law 8Rule $%, Sec. %'. .

Summar! Settlement of Estates

". Extrajudicial settlement b! a#reement between $eirs, w$en allowed

Rule 7)* Sec. 1. +trajudicial settlement by agreement bet,een t(e (eirs

RE+!ISI*ES O& E,*RA-!DICIAL SE**LE'EN* 1. +ecedent dies intestate !. 2o outstanding debts at time of settlementN %. 5eirs all of legal age or minors represented by Budicial guardians or legal representatives -. Settlement made in public instrument duly filed with Register of +eeds &. ,ublication in newspaper of general circulation in the province once a wee for % consecutive wee s (. Bond eCuivalent to value of personal property posted with Register of +eedsNN

N ,resumed that decedent left no debts if no creditor filed petition for letters of administration within ! years after death of decedent. NN Bond reCuired only when personality is involved in the eDtraBudicial settlement. Real estate is subBect to lien in favor of creditors, heirs or other persons for ! years from distribution of estate, notwithstanding any transfers of real estate that may have been made 8Sec. -, Rule $-'.

R043E20G* for Sec. 1, Rule $- when person dies without having obligations to be paid, his heirs are not bound to submit property for Budicial administration, which is always long and costly 8+tulo vs. -asion, (( ,hil. %/!'. 3; 5*3RS +3S0GR** ordinary action for partition. 3; E2G> E2* 5*3R affidavit of self"adBudication. ;3G32G E; *94R0:F+3C30G S*44G*1*24 ?345 R*G3S4*R E; +**+S R*KF3R*+ whether by public instrument, affidavit, stipulation in pending action for partition. Gac of registration of eDtraBudicial settlement does not affect its validity when there are no creditors or rights of creditors are not involved 8 Vda. de &eyes vs. CA, 1.. SCR0 (-( 81..1'.

+*S,34* 34S ,FBG3C043E2, eDtraBudicial settlement 2E4 B32+32G on any person who has not participated therein or who had no notice thereof 8Sec. 1, last par., Rule $-# a%pilo vs. CA, 1/1 ,hil. $1 @1.&)A'. E.tra"udicial settle#ent / on w%o# binding

4he procedure outlined in Section 1 of Rule $- is an eD parte proceeding. 4he rule plainly states, however, that persons w%o do not participate or %ad no notice of an e.tra"udicial settle#ent will not be bound t%ereb0. 4he publication of the settlement does not constitute constructive notice to the heirs who had no nowledge or did not ta e part in it because the same was notice after the fact of eDecution. $Cua vs. Vargas, G.R. 2o. 1&(&%(, Ectober %1, !//(' *%e publication of t%e settle#ent does not constitute constructive notice to t%e %eirs w%o %ad no 1nowledge or did not ta1e part in it because t%e sa#e was notice after t%e fact of e.ecution. 4he reCuirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedentHs estate. 8 pouses (iro vs. .eirs of Cuyos, G.R. 2o. 1(1!!/, :uly %/, !//)2

2. %wo&!ear prescripti'e period

0ction to annul deed of eDtraBudicial settlement Sec. -, Rule $- provides a two year prescriptive period 81' to persons who participated or ta1en part or %ad notice of the eDtraBudicial partition, and 8!' when the provisions of Sec. 1 of Rule $- have been strictly complied with that all persons or %eirs of the decedent have ta1en part in the eDtraBudicial settlement or are represented by themselves or through guardians 8 -edrosa vs. CA, %&% SCR0 (!/ @!//1A'.

3. Affida'it of self&adjudication b! sole $eir

0dBudication by an heir of the decedentHs entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate 8 *elgado vda. de *e la &osa vs. .eirs of Marciana &ustia vda. de *a%ian, -)/ SCR0 %%- @!//(A'. Respondent, believing rightly or wrongly that she was the sole heir to ,ortugalHs estate, eDecuted on ;ebruary 1&, 1.)) the Cuestioned 0ffidavit of 0dBudication under the second sentence of Rule $-, Section 1 of the Revised Rules of Court. Said rule is an eDception to the general rule that when a person dies leaving a property, it should be Budicially administered and the competent court should appoint a Cualified administrator, in the order established in Sec. (, Rule $) in case the deceased left no will, or in case he did, he failed to name an eDecutor therein. $-ortugal vs. -ortugal/#eltran* G.R.2o. 1&&&&&, 0ugust 1(, !//&0 Since :osefa +elgado had heirs other than Guillermo Rustia, Guillermo could not have validly adBudicated :osefaHs estate all to himself. Rule $-, Section 1 of the Rules of

Court is clear. 0dBudication by an heir of the decedentHs entire estate to himself by means of an affidavit is allowed only if he is the sole %eir to the estate. $In the Matter of the Intestate "state of *elgado, G.R. 2o. 1&&$%%, :anuary !$, !//(

4. Summar! settlement of estates of small 'alue, w$en allowed

+istinction between eDtraBudicial settlement 8*S' and summary settlement of estates of small value 8SS'< 1. *S"no court intervention SS"Budicial adBudication although summary !. *S"value of estate immaterial SS"applies only where gross value not more than ,1/,///.// %. *S"allowed only in intestate succession SS"both testate and intestate -. *S"no outstanding debts of estate at time of settlement SS"even if there are debts

(.

)emedies of a##rie'ed settlement of estate

parties

after

extrajudicial

4he remedy of an heir who did not participate in, or had no nowledge of, the eDtraBudicial partition is to file an action for reconveyance. Prescriptive period for non3participants 1/ years, because an action for reconveyance based on implied or constructive trust, being an obligation created by law, prescribes in 1/ years 80rt. 11--, par. !, Civil Code' 4he period starts from issuance of title over the property 8 Mar1uez vs. CA, %// SCR0 (&% @1..)A'. Constructive trusts under 0rt. 1-&( are established to prevent unBust enrichment. 3n Mar1uez, husband eDecuted affidavit of self"adBudication without including the children 4he ruling in ,erona vs. *e ,uz%an, 11 SCR0 1&% 81.(-', cited in -edrosa vs. CA,, that prescriptive period for non"participants is - years from discovery of fraud, i.e., when deed was filed with Register of +eeds and new title issued, is not applicable, because the same was based on the old Code of Civil ,rocedure 8Sec. -%, which governed prescription'. 4he ,erona doctrine was abandoned in A%erol vs. #agu%baran, 1&- SCR0 %.( 81.)$' and reiterated in Caro vs. CA, 1)/ SCR0 -/1 81.).' and Mar1uez vs. CA. E.ception to prescription of actions when plaintiff, the legal owner, and not the defendant registered owner, is in possession of the land to be reconveyed. Said action, when based on fraud, is imprescriptible as long as the land has not passed to an innocent purchaser for value 8.eirs of aludares vs. CA, -!/ SCR0 &-'. Production and Probate of +ill

*.

Rule 7$roduction of ,ill* Allo,ance of ,ill necessary 1. 0llowance of will is conclusive as to its due eDecution. 0rt. $)%, Civil Code defines a will as< an act whereby a person is permitted with the formalities prescribed by law to control to a certain degree the disposition of his estate to ta e effect after his death.

,etitioner should reali6e that the allowance of %er %usband4s will is conclusive onl0 as to its due e.ecution) 4he authority of the probate court is limited to ascertaining whether the testator, being of sound mind, freely eDecuted the will in accordance with the formalities prescribed by law. 4hus, petitionerHs claim of title to the properties forming part of her husbandHs estate should be settled in an ordinary action before the regular courts. 8)ittscher vs. )ittscher, G.R. 2o. 1(/&%/, 2ovember !/, !//$' !. ,robate of will 8special proceeding to establish the validity of a will' is 102+04ER>. a. 4he law enBoins probate of the will and public policy reCuires it. Fnless will is probated and notice given to the whole world, right of a person to dispose of his property by will may be rendered nugatory 8 Maninang vs. CA, 11- SCR0 -$) @1.)!A'. 4he +eed of +onation which is one of mortis causa, not having followed the formalities of a will, is void and transmitted no right to petitionersH mother. But even assuming that the formalities were observed, since it was not probated, no right to Got 2os. ($- and ($( was transmitted to 1aria. 8Aluad vs. Aluad, G.R. 2o. 1$(.-%, Ectober 1$, !//) b. 3n intestate succession, no valid partition among heirs until after will has been probated 8&alla vs. Judge +ntalan, 1$! SCR0 )&) @1.).A'. c. ,resentation of will cannot be dispensed with on the ground of *S4E,,*G because public policy reCuires that a will should be probated 8 Fernandez vs. *i%aguiba, !1 SCR0 -!) @1.($A'.

". ,ature of probate proceedin#

PRO5A*E CO!R* DOES NO* LOO$ IN*O IN*RINSIC ALIDI*6

GENERAL R!LE< ,robate courtHs authority is limited only to eDtrinsic validity of the will, i.e.< a. due eDecution voluntariness b. testatorHs testamentary capacity sound mind c. compliance with formal reCuisites or solemnities 1. 3ntrinsic validity of the will normally comes after court declares that will has been duly authenticated. !. Court at this stage of the proceedings is not called upon to rule on intrinsic validity or legality of the provisions of the will 8)uguid vs. )uguid, 1$ SCR0 --. @1.((A# Maninang vs. CA, supra'. E,CEP*IONS( 1. 3n eDceptional instances, courts not powerless to pass upon certain provisions of will which it may declare invalid even as it upholds eDtrinsic validity of will 8 A2ero vs. Ca, !%( SCR0 -)) @1..-A'. !. ,robate court may only disregard passing on eDtrinsic validity of will where intrinsic validity apparent on face of will 8Maninang vs. CA, supra' %. ,robate of will might become idle ceremony if on its face it appears intrinsically void. -. 3n )uguid, court ruled that will was intrinsically invalid as it completely preterited parents of the testator. a. ,reterition annuls institution of heirs

b. +isinheritance annuls institution of heirs as to portion of estate which disinherited heirs have been illegally deprived

2. +$o ma! petition for probate- persons entitled to notice

Rule 7. Allo,ance or #isallo,ance of 'ill Sec. 1. '(o may petition for allo,ance of ,ill. 78O 1. !. %. -. &. *Decutor Gegatee need not be a relative of decedent +evisee need not be a relative of decedent Ether interested person " heir# creditor 4estator during his lifetime

78EN at any time after death of testator not subBect to bar by statute of limitations and does not prescribe, since it is reCuired by public policy. 78ERE / court having Burisdiction 78A* / petition to have will allowed whether< a. will in possession of petitioner or not b. will lost c. will destroyed

-!RISDIC*ION 8O7 AC+!IRED a. 0ttaching of mere copy of will sufficient anneDing of original of will to the petition is not Burisdictional reCuirement. b. +elivery of will sufficient even if no petition filed under Sec. %, Rule $(, Iwhen a will is delivered to the court,J court could %otu proprio ta e steps to fiD time and place for proving the will, issue corresponding notices. Onl0 1nown %eirs9 legatees and devisees entitled to personal notice

Rule 7.* Sec. ). /eirs* devisees* legatees and e+ecutor to be notified by mail or personally. 1. 2otice of time and place of hearing should be addressed to a. designated or nown heirs, legatees and devisees b. person named as eDecutor 8if he is not petitioner' c. person named as co"eDecutor not petitioning !. residing in the ,hilippines %. at their places of residence, if nown -. ,ersonal service at least 1/ days before hearing &. 1ailed service at least !/ days before hearing (. 3; 4*S404ER as s for allowance of his own will notice shall be sent only to his CE1,FGSER> 5*3RS. Notice to Designated 8eirs9 Legatees and Devisees -urisdictional when they are nown 02+ their places of residence are nown 8*e Arranz vs. ,aling, 1(1 SCR0 (!)'.

2otice is reCuired to be personally given to nown heirs, legatees, and devisees of the testator. @Sec. -, Rule $(, Rules of CourtA. 0 perusal of the will shows that respondent was

10

instituted as the sole heir of the decedent. ,etitioners, as nephews and nieces of the decedent, are neither compulsory nor testate heirs who are entitled to be notified of the probate proceedings under the Rules. Respondent had no legal obligation to mention petitioners in the petition for probate, or to personally notify them of the same. $Alaban vs. CA, G.R. 2o. 1&(/!1, September !%, !//&'.

D. Allowance or Disalllowance of will

1. Contents of petition for allowance of will

Rule 7.* Sec. 2. &ontents of petition. a. :urisdictional facts< 1. that a person has died leaving a will# and !. the testator at the time of death is a resident within the territorial Burisdiction of the court# or %. the testator is a non"resident at the time of death but left property within the territorial Burisdiction of the court b. names, ages and residences of the heirs, legatees and devisees of the testator or decedent c. probable value and character of the property of the estate d. name of the person for whom letters are prayed e. if the will has not been delivered to the court, the name of the person having custody thereof Rule 7.* Sec. 3. publis(ed. &ourt to appoint time for proving t(e ,ill. !otice t(ereof to be

Notice and 8earing: Publication 1. 0fter will delivered to, or petition for allowance of will filed in court having Burisdiction, court a. shall fiD time and place for proving will when all concerned may appear to contest allowance thereof. b. cause notice of such time and place to be ,FBG3S5*+ % wee s successively in newspaper of general circulation in the province. !. 2E 2*?S,0,*R ,FBG3C043E2 where petition for probate filed by 4*S404ER himself. Probate of 7ill is In Re# 2otice by publication as prereCuisite to allowance of will is CE2S4RFC437* 2E43C* to the whole world. ?hen probate is granted, the Budgment is binding upon everybody, even against the state.

Probate -!RISDIC*IONAL ?ithout publication of petition, proceedings for settlement of estate is 7E3+ and should be 022FGG*+. Rule 7.* Sec. -. $roof of (earing. '(at sufficient in absence of contest. E IDENCE IN*ROD!CED A* PRO5A*E O& 7ILL

1. ,ublication

11

!. 2otice of hearing served on nown heirs, legatees, devisees, etc. if places of residence nown %. 4estimony of subscribing witnesses a. Fncontested one witness sufficient b. Contested all subscribing witnesses and notary 8wills eDecuted under Civil Code' other witnesses 8under certain conditions' -. 5olographic will a. Fncontested at least one witness who nows handwriting and signature of testator# eDpert testimony 8in the absence of competent witness' b. Contested at least % witnesses who now handwriting of testator# eDpert testimony 8in the absence of competent witness' &. 5olographic will testator himself as petitioner a. Contested contestant has burden of disproving genuineness and due eDecution b. Fncontested testator must affirm that will and signature are in his own handwriting Substantial Co#pliance Rule

3f will eDecuted in substantial compliance with formalities of law, and possibility of bad faith obviated it should be admitted to probate 8*e Jesus vs. *e Jesus, 1%- SCR0 !-&'.

2.

.rounds for disallowin# will

Rule 7.* Sec. 0. Grounds for disallo,ing ,ill. 1. Gegal formalities a. not eDecuted and attested as reCuired by law !. 4estamentary capacity b. testator insane or otherwise mentally incapable to ma e will at time of eDecution %. +ue eDecution c. eDecuted under duress, or the influence of fear, or threats d. procured by undue and improper pressure and influence on the part of the beneficiary, or some other person, for his benefit. e. signature of testator procured by fraud or tric and he did not intend that the instrument be his will at time of fiDing his signature f. testator acted by %ista!e or did not intend that instru%ent be signed or should be his 3ill at the ti%e of affi4ing his signature 80rt. %)., Civil Code' Grounds for Disallowance of 7ill E.clusive

Gists in Sec. ., Rule $( and 0rt. %). are *9CGFS37* 2E E45*R GREF2+ can serve to disallow a will. *Dample< 3f testator fails to sign and date some dispositions in holographic will, it affects only the validity of the dispositions, but not the whole will. *Dc. 3f unauthenticated alterations, cancellations or insertions are made on the +04* of will of on testatorHs S3G204FR* 8 A2ero vs. CA, supra'. Separate wills #a0 be probated "ointl0 8Vda. de -erez vs. (olete, !%! SCR0 $!! @1..-A'.

3. )eprobate- )e/uisites before will pro'ed outside allowed in t$e P$ilippines- effects of probate
Rule 77 Allo,ance of ,ill proved outside of p(ilippines

12

and administration of estate t(ereunder Sec. 1. 'ill proved outside of t(e $(ilippines may be allo,ed (ere. *73+*2C* 2*C*SS0R> ;ER R*,REB04* E; ?3GG or will probated outside the ,hilippines< 1. !. %. -. &. due eDecution of will in accordance with foreign laws testator has domicile in foreign country and not ,hilippines will has been admitted to probate in such country fact that foreign court is a probate court law of the foreign country on procedure and allowance of wills 8Vda. de -erez vs. (olete, supra'

Reprobate of will ?hile foreign laws do not prove themselves in our Burisdiction and our courts are not authori6ed to ta e Budicial notice of them# however, petitioner, as ancillary administrator of 0udreyHs estate, was duty"bound to introduce in evidence the pertinent law of the State of 1aryland. 8Ancheta vs. ,uersey/*alaygon, G.R. 2o. 1%.)(), :une ), !//('

P!5LICA*ION AND NO*ICE RE+!IRED Compliance with Secs. % and - of Rule $(, re publication and notice by mail or personally to nown heirs, legatees and devisees of testator resident in the ,hilippines and to eDecutor, if he is not the petitioner, reCuired also in wills for reprobate 8 Vda. de -erez vs. (olete'. E&&EC* O& PRO5A*E ?hen the will is allowed, it shall have the same effect as if originally proved and allowed in such court 8Rule $$, Sec. %'. 4he letters testamentary or of administration granted shall eDtend to all of the estate of the testator in the ,hilippines. 0fter payment of Bust debts and eDpenses of administration, the estate shall be disposed of according to such will, so far as such will may operate upon it 8Rule $$, Sec. -'.

E. 0etters %estamentar! and of Administration

Rule 71 2etters testamentary and of administration* ,(en and to ,(om issued Sec. 1. '(o are incompetent to serve as e+ecutors or administrators *9*CF4ER person named in the will to administer decedentHs estate to carry out provisions thereof 0+1323S4R04ER person appointed by the court to administer the estate 0dministrator need not be an heir can be a stranger to the deceased, such as a creditor.

GRO!NDS &OR INCO'PE*ENCE 1. 1inority !. 2on"residence %. Fnfitness a. drun enness b. incompetence c. want of understanding d. want of integrity e. conviction of offense involving moral turpitude 8anything done contrary to Bustice, honesty, good morals'

13

Courts may refuse to appoint a person as eDecutor or administrator on ground of F2SF340BG*2*SS adverse interest or hostile to those immediately interested in the estate 8Li% vs. *iaz/Maillares, 1) SCR0 %$1 @1.((A'.

;ailure to file an income taD returnJ is not a crime involving moral turpitude because the mere omission is already a violation regardless of the fraudulent intent or willfulness of the individual. 8&epublic vs. Marcos, G.R. 2o. 1%/%$1, 0ugust -, !//.' LE**ERS *ES*A'EN*AR6 ISS!ED 78EN 7ILL ALLO7ED 8Rule $), Sec. -' ?hen the will is proved and allowed, the court shall issue G*44*RS 4*S401*240R> thereon to the person named as *9*CF4ER therein, if he is "" a. competent b. accepts the trust and c. gives bond

". +$en and to w$om letters of administration #ranted

Rule 71* Sec. .. '(en and to ,(om letters of administration granted 7%en ad#inistration granted ' ' letters of ad%inistration 3ith 3ill anne4ed

1. 2o eDecutor named in will !. *DecutorOs 8isOare'< a. 3ncompetent - 1inor - 2on"resident - Fnfit b. Refuse the trust c. ;ail to give bond %. ,erson dies intestate -. ?ill void and not allowed

' '

letters of ad%inistration

2. 1rder of preference
Order of preference in appoint#ent of ad#inistrator 8Rule $), Sec. (' 1. surviving spouse partner in conBugal partnership and heir of deceased !. neDt of in 'eaning of ne.t of 1in

En the matter of appointment osf administrator of the estate of the deceased, the surviving spouse is preferred over the neDt of in of the decedent. ?hen the law spea s of IneDt of inJ, the reference is to those who are entitled, under the statute of distribution, to the decedentHs property# one whose relationship is such that he is entitled to share in the estate as distributed, or, in short, an heir. 3n resolving, therefore, the issue of whether an applicant for letters of administration is a neDt of in or an heir of the decedent, the probate court perforce has to determine and pass upon the issue of filiation. 0 separate action will only result in a multiplicity of suits. $Angeles vs. Maglaya, G.R. 2o. 1&%$.), September !, !//&0 !. person reCuested by spouse or neDt of in %. principal creditors a. if spouse or neDt of in is incompetent or unwilling or b. neglects for %/ days after death of decedent to apply for administration, or to reCuest that administration be granted to some other person %. other person selected by court if no creditor competent or willing

4he order of preference in the appointment of a regular administrator as provided in the afore"Cuoted provision does not apply to the selection of a special administrator. 4he

14

preference under Section (, Rule $) of the Rules of Court for the neDt of in refers to the appointment of a regular administrator, and not of a special administrator, as the appointment of the latter lies entirely in the discretion of the court, and is not appealable) 2ot being appealable, the only remedy against the appointment of a special administrator is Certiorari under Rule (& of the Rules of Court. 8(an vs. ,edorio, Jr., G.R. 2o. 1((&!/, 1arch 1-, !//)' Court #a0 re"ect order of preference

?hile surviving spouse is entitled to preference in the appointment, circumstances might warrant his reBection and appointment of someone else, at the discretion of the court) Interest in estate as principal consideration

3n the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. 4hose who will reap benefit of a wise, speedy and economical administration or will suffer conseCuences of waste, improvidence or mismanagement have the 53G5*S4 324*R*S4 and 1ES4 32;GF*2430G 1E437* to administer estate correctly 8,onzales vs. Aguinaldo, 1./ SCR0 11! @1../A'. 4he order of preference does not rule out the appointment of co"administrators, especially in cases where Bustice and eCuity demand that opposing parties or factions be represented in the management of the estate.

3.

1pposition to issuance of letters testamentar!simultaneous filin# of petition for administration

Rule 70 %pposing issuance of letters testamentary* petition and contest for letters of administration LE**ERS *ES*A'EN*AR6 issued to eDecutor LE**ERS O& AD'INIS*RA*ION 7I*8 7ILL ANNE,ED / issued to administrator when there is no eDecutor named in will, or eDecutor is incompetent, refuses trust or fails to give bond. LE**ERS O& AD'INIS*RA*ION issued to administrator in intestate proceedings.

Sec. 1. %pposition to issuance of letters testamentary. Simultaneous petition for administration 0ny person interested in a will may oppose in writing the issuance of letters testamentary to persons named as eDecutors, and at the same time file petition for letters of administration with will anneDed. 'eaning of ;interested person< one who would be benefited by the estate 8heir', or one who has a clai# against the estate 8creditor'. 3nterest must be 104*R30G and +3R*C4, not merely indirect or contingent 8 agunsin vs. Lindayag, ( SCR0 )$-'. 0n Iinterested personJ has been defined as one w%o would be benefited by the estate, such as an heir, or one w%o %as a clai# against the estate, such as a creditor. 4he interest must be material and direct, and not merely indirect or contingent 8 an Luis vs. an Luis, G.R. 2o. 1%%$-%, ;ebruary (, !//$' ?here the right of the person filing a petition for the issuance of letters of administration is dependent on a fact which has not been established or worse, can no longer be established, such contingent interest does not ma e her an interested party. 8(ayag ve. (ayag/,allor, G.R. 2o. 1$-()/, 1arch !-, !//)'

15

P!5LICA*ION AND NO*ICE RE+!IRED 8Sec. %, Rule $.' ,ublication and notice of hearing 8per Sec. %, Rule $(' Burisdictional. 0lso, notice to I nown heirs and creditors of the decedent, and to any other person believed to have an interest in the estateJ 8per Sec. -, Rule $(' if names and addresses are nown 8*e Arranz vs. ,aling'.

4.

Powers and duties of executors restrictions on t$eir powers

and

administrators-

,owers< a. ,ossess and manage estate of the deceased to pay debts and eDpenses of administration. 8Rule )-, Sec. !' b. 8*Decutor or administrator of estate of a deceased partner' 5ave access to, eDamine and ta e copies of, boo s and papers relating to the partnership business, and eDamine and ma e invoices of the property belonging to such partnership 83bid., Sec. 1'. c. ?ith the approval of the court, to compound or compromise with a debtor of the deceased 8Rule )$, Sec. -' +uties a. 1aintain the estate in tenantable repair, and. b. +eliver the same to the heirs or devisees when directed by the court. 8Rule )-, Sec. %' 4he administrator may only deliver properties of the estate to the heirs after payment of the debts, funeral charges and other eDpenses against the estate, eDcept when authori6ed by the court 8 ilverio, Jr. vs. Court of Appeals , G.R. 2o. 1$).%%, September 1(, !//.'

(. Appointment of special administrator

Rule 13 Special administrator 78EN IS SPECIAL AD'INIS*RA*OR APPOIN*ED 1. ?hen there is dela0 in granting letters testamentary or of administration by any cause " including appeal from allowance or disallowance of will !. court may appoint special administrator to ta e possession and charge of the estate of the deceased %. until a. Cuestions causing delay decided or b. eDecutors or administrators appointed 4he appointment of a special administrator is Bustified only when there is delay in granting letters, testamentary 8in case the decedent leaves behind a will' or administrative 8in the event that the decedent leaves behind no will, as in the ,etition at bar' occasioned by any cause. 4he principal obBect of the appointment of a temporary administrator is to preserve the estate until it can pass into the hands of a person fully authori6ed to administer it for the benefit of creditors and heirs. 8(an vs. ,edorio, Jr., G.R. 2o. 1((&!/, 1arch 1-, !//)' P!5LICA*ION AND NO*ICE RE+!IRED

*ven in the appointment of a special administrator, same Burisdictional reCuirements under Sec. %, Rule $.. ORDER APPOIN*ING SPECIAL AD'INIS*RA*OR NO* APPEALA5LE

16

Erder appointing special administrator interlocutory in nature and mere incident in the Budicial proceedings, hence not appealable 8 a%son vs. a%son, 1/! ,hil. $%&'

2.

.rounds for remo'al of administrator

Rule 12 Revocation of Administration*#eat(* Resignation and Removal of +ecutors and Administrators Sec. 1. Administration revo4ed if ,ill discovered. $roceedings t(ereon. 1. 3f after letters of administration have been granted as if decedent died intestate, his will is ,RE7*+ 02+ 0GGE?*+ by the court, !. letters of administration shall be R*7EL*+ and all powers thereunder cease. %. 0dministrator shall forthwith a. surrender letters to the court and b. render his account within such time as the court directs -. ,roceedings for issuance of letters testamentary or of administration will follow.

Sec. 2. &ourt may remove or accept resignation of e+ecutor or administrator. $roceedings upon deat(* resignation* or removal. Concerning complaints against the general competence of the administrator, the proper remedy is to see the removal of the administrator in accordance with Section !, Rule )!. ?hile the provision is silent as to who may see with the court the removal of the administrator, a creditor, even a contingent one, would have the personality to see such relief. 0fter all, the interest of the creditor in the estate relates to the preservation of sufficient assets to answer for the debt, and the general competence or good faith of the administrator is necessary to fulfill such purpose. 8.ilado vs. Court of Appeals, G.R. 2o. 1(-1/), 1ay ), !//.' Sec. 3. Acts before revocation* resignation* or removal to be valid. Effect of revocation9 resignation or re#oval of e.ecutor or ad#inistrator on %is previous acts lawful acts shall have same validity as if no revocation, resignation or removal. Rule on Precedence of Probate of 7ill Sec. 1, Rule )! was followed in +riarte vs. CFI of )egros 'ccidental< 1. !. %. -. &. 3f in the course of intestate proceedings, it is found out that decedent left a last will, probate proceedings should R*,G0C* intestate proceedings even if at that stage an administrator had already been appointed. 0dministrator is reCuired to a. render final account b. turn over estate in his possession to eDecutor subseCuently appointed ?ithout preBudice that proceeding shall continue as intestacy should alleged will be reBected or disapproved.

,robate of the will is mandatory 8Sec. 1, Rule $&' and therefore ta es precedence over intestate proceedings. 78A* *O DO 7I*8 PROCEEDINGS / DISCRE*IONAR6 7I*8 CO!R*

?hether intestate proceedings already commenced should be discontinued and a new proceeding under a separate number and title should be constituted entirely a 1044*R E; ;ER1 and lies within SEF2+ +3SCR*43E2 of court. +oes not preBudice substantial rights of heirs and creditors 8Intestate "state of 5olfson, -& SCR0 %)1'.

17

3. *laims A#ainst t$e Estate

Rule 1. &laims against state Notice to creditors / immediately after granting letters testamentary or of administration, court shall issue - 2E43C* reCuiring all persons having 1E2*> CG031S against the estate - to ;3G* them in the office of the cler of court 8Sec. 1'.

".

%ime wit$in w$ic$ claims s$all be filed- exception

*i#e for filing clai#s / not more than 1! months nor less than ( months after date of ;3RS4 ,FBG3C043E2 of the notice 8Sec. !'. New period allowed 8Sec. !, second sentence'

0t any time before order of distribution is entered, creditor who failed to file his claim within the time set may move to be allowed to file such claim. Court may for good cause shown and on such terms as are Bust allow such claim to be filed within a period 2E4 *9C**+32G E2* 1E245. Ene month does not commence from eDpiration of the original period for filing claims. 3t begins from the date of the order of the court allowing said filing 8Barredo vs. C0, ( SCR0 (!/'.

2. Statute of ,on&*laims
Statute of Non3Clai#s =SNC2 / the period fiDed for the filing of claims against the estate)

1. ,eriod fiDed by probate court must not be less than ( months nor more than 1! months from the date of first publication of the notice. !. Such period once fiDed by the court is 102+04ER> it cannot be shortened. eD. ,eriod fiDed within ( months %. S2C supersedes statute of limitations even if claim has not yet prescribed, it may be barred by S2C. Ruling spirit of our probate law / S,**+> S*44G*1*24 of the estate of deceased persons for the benefit of CR*+34ERS and those entitled to the R*S3+F* by way of 325*R3402C* or G*G0C> after the debts and eDpenses of administration have been ,03+ 8 i!at vs. Villanueva, &$ ,hil. -)('. Publication of notice to creditors 8Sec. %' 3mmediately after notice to creditors is issued, eDecutor or administrator shall cause " 1. publication of said notice % wee s successively in newspaper of general circulation in the province, and !. posting for the same period in a. - public places in the province and b. ! public places in the municipality where decedent last resided P!5LICA*ION O& NO*ICE *O CREDI*ORS CONS*R!C*I E NO*ICE *O *8E 78OLE 7ORLD 5ence, creditor cannot be permitted to file his claim beyond the period fiDed in the notice on the ground that he had no nowledge of the administration proceedings 8 Villanueva vs. -)#, . SCR0 1-&'. Clai#s t%at #ust be filed 8Sec. &'

18

1. Claims for money against the decedent arising from contract9 eDpress or implied, whether due, not due or contingent !. Claims for funeral eDpenses and eDpenses for last sic ness of decedent %. :udgment for money against decedent a. 4he Budgment must be presented as a claim against the estate where the Budgment debtor dies before levy on eDecution of his properties 8 "vangelista vs. La -rovedra, %) SCR0 %$.'. b. ?hen the action is for recovery of money arising from contract, and defendant dies before entry of final Budgment, it shall not be dismissed but shall be allowed to continue until entry of final Budgment. 0 favorable Budgment obtained by plaintiff shall be enforced under Rule )( 8Rule %, Sec. !/'. 'one0 clai#s against a deceased debtor

1. Section & of Rule )( of the Rules of Court eDpressly allows the prosecution of money claims arising from a contract against the estate of a deceased debtor. 4hose claims are not actually eDtinguished. ?hat is eDtinguished is only the obligeeHs action or suit filed before the court, which is not then acting as a probate court. 3n the present case, whatever monetary liabilities or obligations Santos had under his contracts with respondent were not intransmissible by their nature, by stipulation, or by provision of law. 5ence, his death did not result in the eDtinguishment of those obligations or liabilities, which merely passed on to his estate. +eath is not a defense that he or his estate can set up to wipe out the obligations under the performance bond. $ tronghold Insurance Co%pany, Inc. vs. &epublic/Asahi ,lass Corporation, ,.&. )o. 6789:6, June, ;<<:0 !. RespondentsH monetary claim shall be governed by Section !/ 8then Section !1', Rule % 3n relation to Section &, Rule )( of the Rules of Court. 4hus, said money claims must be filed against the estate of petitioner 1elencio Gabriel. $,abriel vs. #ilon, ,.&. )o. 67:=>=, February 8, ;<<80 1ust be filed within the time limited in the notice, otherwise they are B0RR*+ ;ER*7*R.

*Dception may be set forth as CEF24*RCG031S in any action eDecutor or administrator may bring against the claimants. Rationale< 1' to protect the estate of the deceased by informing the eDecutor or administrator of the claims against it, thus enabling him to eDamine each claim and to determine whether it is a proper one which should be allowed# !' speedy settlement of affairs of deceased# and %' early delivery of property to distributes, legatees, or heirs 8+nion #an! of the -hilippines vs. antiba?ez, G.R. 2o. 1-..!(, ;ebruary !%, !//&'.

0 money claim against an estate is more a in to a motion for creditorsP claims to be recogni6ed and ta en into consideration in the proper disposition of the properties of the estate. 0 money claim is only an incidental matter in the main action for the settlement of the decedentPs estate# more so if the claim is contingent since the claimant cannot even institute a separate action for a mere contingent claim. 5ence, herein petitionerPs contingent money claim, not being an initiatory pleading, does not reCuire a certification against non"forum shopping. 8 he!er vs. "state of Alice he!er, G.R. 2o. 1&$.1!, +ecember 1%, !//$' Enly 1E2*> CG031S may be presented in the testate or intestate proceedings. 2E4 0GG 1E2*> CG031S but only those arising upon a liability contracted by decedent before his death. Claims arising after his death cannot be presented *9C*,4

19

" funeral eDpenses " eDpenses for last sic ness 2.B. Claims arising after decedentHs death may be allowed as eDpenses of administration. Enu#eration e.clusive / refers onl0 to contractual #one0 clai#s

Enly claims for money, debt or interest thereon, arising from contract can be presented in the testate or intestate proceedings. Clai#s w%ic% survive deat% of accused

Claim for civil liability survives notwithstanding death of accused if the same may also be based on a source of obligation other than delict 8contract, law, Cuasi"contract, Cuasi"delict' Separate civil action may be enforced either against a. *state of accused 8contract' b. *DecutorO administrator 8law, Cuasi"contract, Cuasi"delict' 8-eople vs. #ayotas, !%( SCR0 !%. @1..-A'. Civil actions for tort or Cuasi"delict do not fall within the class of claims to be filed under the notice to creditors reCuired under Rule )(. 4hese actions, being civil, survive the death of the decedent and may be commenced against the administrator pursuant to Section 1, Rule )$.. =.ilado vs. Court of Appeals, G.R. 2o. 1(-1/), 1ay ), !//.' E.ecution of final "udg#ent not proper re#ed0 but filing of clai#

?hen Budgment in a civil case has become final and eDecutory, eDecution not proper remedy to enforce payment# claimant should ,R*S*24 CG031 before probate court 8 *o%ingo vs. ,arlitos, :une !., 1.(%'. 'anda#us not available / immediate payment of claim by the administrator is 2E4 0 1044*R E; R3G54 8"chaus vs. #lanco, 1$. SCR0 $/- @1.)&A'. Ordinar0 action for collection not allowed 8)acar vs. )istal, 11. SCR0 !.' -udg#ent appealable =Sec) >?2 / Budgment of the court approving or disapproving a claim is 0,,*0G0BG* as in ordinary actions

3. *laim of executor or administrator a#ainst t$e estate

Rule )(, Sec. ) 1. 3f the eDecutor or administrator has a claim against the estate he represents, !. he shall give notice thereof, in writing, to the court %. the court shall appoint a special administrator, and -. the special administrator shall, in the adBustment of such claim, have the same power and be subBect to the same liability as the general administrator or eDecutor in the settlement of the estate ;rom an estate proceeding perspective, the Special 0dministratorHs commission is no less a claim against the estate than a claim that third parties may ma e. DDD 4he ruling on the eDtent of the Special 0dministratorHs commission effectively, a claim by the special administrator against the estate is the lower courtHs last word on the matter and one that is appealable. 8#riones vs. .enson/Cruz, G.R. 2o. 1&.1%/, 0ugust !!, !//)'

4.

Pa!ment of debts
Rule 11

20

$ayment of debts of t(e estate Sec. 1. #ebts paid in full if estate sufficient Sec. 2. $art of estate from ,(ic( debt paid ,(en provision made by ,ill. Sec. 7. %rder of payment if estate insolvent " follow preference of credits under 0rts. 1/&., !!%."!!&1 of Civil Code *I'E &OR PA6ING DE5*S 8Secs. 1& = 1(' 1. *DecutorOadministrator allowed to pay debts 8and legacies' for a period not more than 1 year. !. *Dtendible 8on application of eDecutorO administrator and after notice and hearing' not eDceeding ( months for a single eDtension. %. ?hole period allowed to original eDecutorOadministrator shall not eDceed ! years. -. Successor of dead eDecutorOadministrator may have time eDtended on notice not eDceeding ( months at a time and not eDceeding ( months beyond the time allowed to original eDecutorOadministrator. Sec. .. &ourt to fi+ contributive s(ares ,(ere devisees* legatees or (eirs (ave been in possession. 1. ?here devisees, legatees or heirs have entered into possession or the estate before debts and eDpenses settled and paid, and !. have become liable to contribute for payment of such debts and eDpenses, %. Court may, after hearing, order settlement of their several liabilities and order how much and in what manner each person shall contribute and may issue eDecution as circumstances reCuire. 2E4*< 4his provision clearly authori6es eDecution to enforce payment of the debts of the estate. Legac0 is not a debt of t%e estate legatees are among those against whom eDecution is authori6ed to be issued 8-astor vs. CA, 1!! SCR0 ))& @1.)%A'. Compare to< Rule )), Secs. 1& = 1( Rule )., Secs. 1"&, $ 8a' referring to payment of debts andOor legacies

0s ruled in -astor, ordered payment of legacy violative of rule reCuiring prior liCuidation of estate 8determination of assets of estate and payment of debts and eDpenses' before apportionment and distributed of residue among heirs# legatees and devisees. Correct rule< Sec. 1 of Rule ./ does not include legacies as among those that should be paid before order of distribution only debts, funeral charges, eDpenses of administration, allowance to widow and inheritance taD. 0fter debts and eDpenses of administration paid, residue given to heirs and those entitled by way of inheritance or legac0 8Magbanua vs. A!ol, $! ,hil. &($'. ,urpose of administration distribution of residue among heirs and legatees after payment of debts and eDpenses 8Luzon urety vs. @uebrar, 1!$ SCR0 %/1'. 7rit of e.ecution not proper procedure for pa0#ent of debts and e.penses of ad#inistration

Fpon motion of the administrator with notice to all heirs, legatees and devisees residing in the ,hilippines, court shall order sale of personal property or sale or mortgage of real property of the deceased to pay debts and eDpenses of administration out of the proceeds of the sale or mortgage.

21

E.ception( where devisees, legatees or heirs have entered into possession of their respective portions in the estate prior to settlement and payment of debts and eDpenses 8See Sec. (, Rule )) above'.

.. Actions b! and a#ainst Executors and Administrators

Rule 17 Actions by and against e+ecutors and administrators

".

Actions t$at administrators

ma!

be

brou#$t

a#ainst

executors

and

Sec. 1. Actions ,(ic( may and ,(ic( may not be broug(t against e+ecutor or administrator. Sec. 2. +ecutor or administrator may bring or defend actions ,(ic( survive.

1. 2E4 0GGE?*+ 0G032S4 *9*CF4ER ER 0+1323S4R04ER action upon claim for recovery of money or debt or interest thereon. - '!S* 5E AGAINS* ES*A*E 8Secs. 1, ! = &, Rule )(' !. 0GGE?*+ actions which survive a. 0ctions to recover real or personal property or interest thereon, or to enforce a lien thereon Civil Case 2o. !&$/ is an action for Cuieting of title with damages which is an action involving real property. 3t is an action that survives pursuant to Section 1, Rule )$ as the claim is not eDtinguished by the death of a party. 8 aligu%ba vs. -alanog, G.R. 2o. 1-%%(&, +ecember -, !//)' Civil Case 2o. %-)), which is an action for the recovery of 0a personal property, a motor vehicle, is an action that survives pursuant to Section 1, Rule )$ of the Rules of Court. 0s such, it is not eDtinguished by the death of a party. 8 arsaba vs. Vda. de (e, G.R. 2o. 1$&.1/, :uly %/, !//.' b. 0ctions to recover damages for an inBury to person or property, real or personal *Decutor or administrator may sue upon any cause of action which accrued to the decedent during his lifetime 8#ayot vs. orbito, %. ,hil. (&/'. 0ny action affecting the property rights of a deceased which may be brought by or against him if he were alive, may be instituted and prosecuted by or against the administrator, unless by its very nature, it cannot survive, because death eDtinguishes such right.

Sec. 3. /eir 5and devisee6 may not sue 5e+ecutor or administrator to recover title or possession or for damages to property6 until s(are assigned. Before distribution is made or before any residue nown heirs and devisees have 2E C0FS* E; 0C43E2 against the administrator for recovery of property left by the deceased 8Lao vs. *ee, ./ ,hil. )()'. 7%en %eirs #a0 file action in court

General rule< heirs have no legal standing to sue for recovery or protection of property rights of the deceased.

22

*Dceptions< 1. !. %. -. ,ending the filing of administration proceedings under 0rt, $$$, rights to succession are transmitted from the moment of death of the decedent. 0dministration proceedings have already been commenced but administrator has not yet been appointed. *Decutor or administrator is unwilling or refuses to bring suit. 0dministrator is alleged to have participated in the act complained of and he is made a party defendant. mbe77lement before letters issued.

Sec. 1.

Double value rule

3f before grant of letters testamentary or of administration, a person embe66les or alienates money or property of the deceased liable to an action in favor of eDecutorOadministrator for +EFBG* 45* 70GF* of the property sold, embe66led or alienated)

3.

)e/uisites before creditor ma! brin# an action reco'er! of propert! fraudulentl! con'e!ed b! deceased
Sec. 13. '(en creditor may bring action. 2ien for costs.

for t$e

?hen there is 1. +eficiency of assets !. +eceased in his lifetime had made or attempted such a conveyance 8with intent to defraud creditors or to avoid any right, debt or duty' as stated in Sec. ., and %. *Decutor or administrator has not commenced the action provided in Sec. . 8entitled -roperty fraudulently conveyed by the deceased %ay be recovered. 5hen e4ecutor or ad%inistrator %ust bring action0 0ny creditor of the estate may, with the permission of the court, commence and prosecute to final Budgment, in the name of the eDecutor or administrator, a li e action for the recovery of the subBect of the conveyance or attempted reconveyance for the benefit of the creditors. o Creditor should file a BE2+ eDecuted to the eDecutor or administrator, in an amount approved by the Budge, conditioned to indemnify the eDecutor or administrator against the costs and eDpenses incurred by reason of such action. o Creditor shall have a G3*2 upon any Budgment recovered by him for reasonable costs and eDpenses ?hen conveyance or attempted conveyance made by deceased in his lifetime in favor of the eDecutor or administrator, action shall be in the name of all the creditors and permission of the court and filing of bond not necessary

4.

Distribution and Partition

Rule 03 #istribution and partition of estate Sec. 1. '(en order for distribution of residue made General rule< distribution of the residue to persons entitled thereto after notice and hearing and after payment of a. debts b. funeral charges c. eDpenses of administration d. allowance to widow e. inheritance taD

23

*Dception< distribution before payment of obligations provided distributees give BE2+ conditioned for payment thereof within such time as court directs.

1. Liquidation
Re@uisites before distribution of estate 1. GiCuidation " determination of all assets of the estate and payment of all debts and eDpenses !. +eclaration of heirs to determine to whom residue of the estate should be distributed. Separate action for declaration of heirs not proper. 4he Regional 4rial Court in the instant case, acting in its general Burisdiction, is devoid of authority to render an adBudication and resolve the issue of advancement of the real property in favor of herein petitioner 2atcher, inasmuch as Civil Case 2o. $1/$& for reconveyance and annulment of title with damages is not, to our mind, the proper vehicle to thresh out said Cuestion. 4he net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death# then, all donations subBect to collation would be added to it ?ith the partible estate thus determined, the legitime of the compulsory heir or heirs can be established# and only then can it be ascertained whether or not a donation had preBudiced the legitimes. =.eirs of *oronio versus .eirs of *oronio, G.R. 2o. 1(.-&-, +ecember !$, !//$'

2. Project of partition
78EN PRO5A*E CO!R* LOSES -!RISDIC*ION ,roBect of partition 4owards the end of the proceedings in a settlement of estate petition, a proBect of partition is usually prepared and presented to the court. 4he proBect of partition is a proposal for distribution of the hereditary estimates and determines the persons entitled thereto 81oran, Comments on the Rules of Court, 1..$ ed., 7ol. %, pp. ())"().' ;inality of approval of proBect of partition by itself does 2E4 4*R13204* probate proceeding 8(i%bol vs. Cano, 1 SCR0 1!$1'. ,robate court loses Burisdiction of an estate under administration only 0;4*R payment of all debts and remaining estate +*G37*R*+ to heirs entitled to receive the same 8 ,uilas vs. Judge of CFI of -a%panga, -% SCR0 111 0 Budicial partition is not final and conclusive and does not prevent the heir from bringing an action to obtain his share, provided the prescriptive period has not closed 8Mari vs. #onilla, )% SCR0 11%$'. 4he R4C of 1a ati, acting as a special commercial court, has no Burisdiction to settle, partition, and distribute the estate of a deceased. 0 probate court has the power to enforce an accounting as a necessary means to its authority to determine the properties included in the inventory of the estate to be administered, divided up, and distributed. Beyond this, the determination of title or ownership over the subBect shares 8whether belonging to 0nastacia or Escar' may be conclusively settled by the probate court as a Cuestion of collation or advancement. 8&eyes vs. &(C Ma!ati, Branch 1-!, G.R. 2o. 1(&$--, 0ugust 11, !//)' ,artial distribution of the estate should not have been allowed. 4here was no determination on sufficiency of assets or absence of any outstanding obligations of the estate of the late Raymond 4riviere made by the R4C in this case. 3n fact, there is a pending claim by GC2 against the estate, and the amount thereof eDceeds the value of the entire estate. 8@uasha Ancheta -ena and )olasco La3 'ffice vs. LC) Construction Corp., G.R. 2o. 1$-)$%, 0ugust !(, !//)'

24

0lthough the right of an heir over the property of the decedent is inchoate as long as the estate has not been fully settled and partitioned, the law allows a co"owner to eDercise rights of ownership over such inchoate right. Ence an action for the settlement of an estate is filed with the court, the properties included therein are under the control of the intestate court. 0nd not even the administrator may ta e possession of any property that is part of the estate without the prior authority of the Court. 8 ilverio, Jr. vs. Court of Appeals, G.R. 2o. 1$).%%, September 1(, !//.'

3. )emed! s$are

of $eir

entitled to

residue but

not #i'en

$is

4o demand his share through " a. a proper motion in the same probate or administration proceedings, ER b. motion to reopen if it had already been closed, and not through an independent action which would be tried by another court or Budge which might reverse a decision or order of the probate court already final and eDecuted and reshuffle properties long ago distributed and disposed of 8,uilas vs. Judge of CFI of -a%panga, infra'. ;our cases illustrate the proper remedyA Vda de Lopez vs. Lopez, *ivinagracia vs. &ovira, ,uillas vs. Judge of CFI of -a%panga and .eirs of Jesus Fran vs. alas. 2ope7 8%& SCR0 )1 ' compared to #ivinagracia 8$! SCR0 %/$ '<

Both involved the issue of the reglementary period within which 2E2",0R43*S to the partition, heir, devisee or any person interested in the estate, can reopen the case. Conclusion if proceeding already closed, motion to reopen may be filed by a non" party deprived of his lawful participation, as long as it is within %/ days 8now 1& days' or before order closing the proceedings becomes final. Guilas 8-% SCR0 111' compared to 8ran 8!1/ SCR0 %/%'<

Both involved ,0R43*S who have not received their shares. Conclusion parties to partition agreement who have not received their shares can file a motion for eDecution within & >*0RS. But if other grounds such as forgery of will are raised, final Budgment cannot be attac ed eDcept through a separate action. 4he validity of a final Budgment can be assailed through a petition for relief under Rule %), annulment of Budgment under Rule -$, and petition for certiorari under Rule (&, assuming the Budgment is void for want of Burisdiction. RE'ED6 O& PRE*ERI*ED 8EIR 4he intestate proceedings, although closed and terminated, can still be opened within the prescriptive period upon petition by the preterited heir 8 olivio vs. CA, 1)! SCR0 11..' ,rescriptive period 1/ years. 0ction upon an obligation created by law must be brought within 1/ years from the time the right of action accrues 80rt. 11--, Civil Code'. 7%ere "udg#ent %as beco#e final9 w%at is t%e re#ed0 for inclusion of a part03 %eirA

0fter the decision became final and eDecutory, the trial Budge lost Burisdiction over the case. 0ny modification that he would ma e, i.e., the inclusion of 1ary Gyon 1artin would be in eDcess of his authority. 4he remedy of 1ary is to file an 32+*,*2+*24 SF34 against the parties and all other heirs for her share in the subBect property, in order that all the parties in interest can prove their respective claims 8)unal vs. CA, !!1 SCR0 !( @1..1A'.

25

4. 5nstances w$en probate court ma! issue writ of execution

0s a general rule, a probate court cannot issue a writ of eDecution. *Dceptions< 1. 4o satisfy the distributive shares of devisees, legatees and heirs in possession of the decedentHs assets !. 4o enforce payment of the eDpenses of partition %, 4o satisfy the costs when a person is cited for eDamination in probate proceedings SE EN S*AGES IN SE**LE'EN* O& ES*A*E 1. ,etition !. 5earing %. Court Erder -. Claims 0gainst *state &. ,ayment of +ebts of *state (. +istribution and ,artition of *state $. Closing SE**LE'EN* O& ES*A*E S*AGES I PE*I*ION *estate &iling of petition for allowance of will / b0 e.ecutor9 devisee9 legatee9 ot%er interested person =Rule BC9 Secs) > D E2 Intestate &iling of petition for issuance of letters of ad#inistration 3 person =Rule BF9 Sec) E2

Order setting petition for %earing Notice of %earing >) Publication of notice for t%ree consecutive wee1s =Rule BC9 Sec) ?2 E) Notice b0 #ail or personall0 to designated or 1nown %eirs9 legatees9 devisees9 e.ecutor =Rule BC9 Sec) G2: 1nown %eirs9 creditors9 ot%er interested persons =Rule BF9 Sec) ?2

26

II 8EARING Proof of notice of %earing =Rule BC9 Sec) H2 =Rule BF9 Sec) H2 Evidence for petitioner >) Deat% of decedent E) Residence at ti#e of deat% *esti#on0Iies of subscribing witnessIes =Rule BC Secs) H D >>2 Decedent left no will or t%ere is no co#petent and willing e.ecutor =Rule BF9 Sec) H2 Petitioner is @ualified for appoint#ent =Rule BJ9 Secs) > D C2 Proof w%en testator is petitioner =Rule BC9 Sec) >E2 Evidence for Oppositor &ile grounds for contest =Rule BC9 Sec) >K2

III CO!R* ORDER Order or decision allowing will or ad#itting it to probate Certificate of allowance attac%ed to prove will =Rule BC9 Sec) >?2 Order for issuance of letters testa#entar0 =Rule BJ9 Sec) G2 Order for issuance of letters of ad#inistration =Rule BF9 Sec) H2 Issuance of letters b0 cler1 of court

27

Oat% of e.ecutor or ad#inistrator &iling of e.ecutor or ad#inistrator4s bond =Rule J>9 Sec) >2 &iling of inventor0 wit%in ? #os) =Rule J>9 Sec) >LaM2 Accounting wit%in > 0ear =Rule J>9 Sec) > LcM: Rule JH9 Sec) J2 Actions b0 or against e.ecutor or ad#inistrator =Rule JB2

I CLAI'S AGAINS* ES*A*E Notice of filing of clai#s / ti#e for filing not #ore t%an >E #os) nor less t%an C #os) fro# first publication =Rule JC9 Secs) > D E2 Publication of notice for ? consecutive wee1s and posting =Rule JC9 Secs) ? D G2 &iling of clai# and answer t%ereto =Rule JC9 Secs) F D >K2 *rial of contested clai# =Rule JC9 Sec) >E2 -udg#ent approving or disapproving clai# =Rule JC9 Sec) >?2

PA6'EN* O& DE5*S O& ES*A*E Debts paid in full if estate sufficient =Rule JJ9 Sec) >2 Order of pa0#ent if estate insolvent =Rule JJ9 Sec) B2 Order for pa0#ent of debts =Rule JJ9 Sec) >>2

28

*i#e for pa0#ent not to e.ceed > 0ear9 e.tendible for > #ore 0ear =Rule JJ9 Sec) >H2 Sales9 #ortgages and ot%er encu#brances of propert0 of decedent for pa0ing debts) etc) =Rule JF2

I DIS*RI5!*ION AND PAR*I*ION O& ES*A*E Rule FK Approval of final accounting and pro"ect of partition Actual distribution or deliver0 to %eirs of t%eir respective s%ares

II CLOSING Order declaring proceedings closed and ter#inated 3333333333333333333333333333333333333333333333333

5. %rustees
Rule 01 9rustees Sec. 1. '(en trustee appointed 1. !. %. 0 trustee necessary to carry into effect the provisions of a a. ?ill b. ?ritten instrument shall be appointed by the R4C in which the will is allowed, or R4C of the province in which the property or some portion thereof affected by the trust is situated

*rust defined 0 trust is a confidence reposed in one person, called the trustee, for the benefit of another called the cestui @ue trust, with respect to property held by the former for the benefit of the latter) E.ercise of sound "udg#ent b0 t%e court in t%e appoint#ent of a trustee

29

0lthough the will does not name a trustee, the probate court eDercises sound Budgment in appointing a trustee to carry into effect the provisions of the will where a trust is actually created by the will by the provision that certain of the property shall be ept together undisposed during a fiDed period and for a stated purpose 8Lorenzo v. -osadas, (- ,hil. %&%'. Ac@uiring t%e trust b0 prescription

0 trustee may acCuire the trust estate by prescription provided there is a repudiation of the trust, such repudiation being open, clear and uneCuivocal, nown to the cestui 1ui trust 8 alinas vs. (uazon, && ,hil. $!.'. Rule .) applies only to e.press trust, one which is created by will or written instrument, and not to an implied trust, which is deducible from the nature of the transaction as a matter of intent, or which are superinduced on the transaction by operation of law as matters of eCuity, independent of the particular intention of the parties 8EHGao vs Co Co Chit, !!/ SCR0 (&('.

". Distin#uis$ed from executor6administrator

0 trustee, li e an eDecutor or administrator, holds an office of trust, particularly when the trustee acts as such under Budicial authority. +istinction< 81' duties of eDecutors or administrators are fiDed andOor limited by law while those of the trustee of an eDpress trust are usually governed by the intention of the trustor or the parties, if established by contract# 8!' duties of trustees may cover a wider range than those of eDecutors or administrators of the estate of deceased persons. 8Araneta vs. -erez, G.R. 2os. G"1(1)&")(, 1ay %1, 1.(!'.

2. *onditions of t$e bond

4he trustee must file a bond in an amount fiDed by the court payable to the Government of the ,hilippines. ;ailure to do so shall be cosidered as declining or resigning the trust. Conditions of the bond< 1. 1a e and return to the court a true inventory of all real and personal estate that at the time of the inventory shall have come to his possession or nowledge !. 1anage and dispose of all such estate according to law and the will of the testator or provisions of the instrument or order under which he was appointed %. Render a true account of the property in his hands -. 0t the eDpiration of the trust, settle his accounts in court and pay over deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled thereto

3. .rounds for remo'al and resi#nation of a trustee

4he court may remove a trustee on the following grounds< 1. 4he removal appears essential in the interest of the petitioners !. 4he trustee is insane %. 4he trustee is otherwise incapable of discharging the trust or is evidently unsuitable to act as one 0 trustee, whether appointed by the court or under a written instrument, may resign his trust if it appears to the court proper so allow such resignation

4.

Extent of aut$orit! of trustee

a. 4he powers of a trustee appointed by a ,hilippine court cannot eDtend beyond the confines of the territory of the Republic of the ,hilippines. 4his is based on the principle that his authority cannot eDtend beyond the Burisdiction of the country under whose courts he was appointed. b. 3n the eDecution of trusts, the trustee is bound to comply with the directions contained in the trust instrument defining the eDtent and limits of his authority, and the nature of his power and duties.

30

7. Esc$eat
Rule 01 sc(eat Esc%eat defined

*scheat is a proceeding whereby the real and personal property of a deceased person in the ,hilippines, who died without leaving any will or legal heirs, become the property of the state upon his death. Nature of Esc%eat Proceedings rests on the principle of ultimate ownership by the state of all property within its Burisdiction.

Parties in Esc%eat Proceedings

0n escheat proceeding is initiated by the government through the Solicitor General. 0ll interested parties, especially the " actual occupants and " adBacent lot owners shall be personally notified of the proceeding and given opportunity to present their valid claims# otherwise, it will be reverted to the state.

". +$en to file 2.

)e/uisites for filin# of petition

Re@uisites for filing petition for esc%eat 1. person died intestate !. he left properties in the ,hilippines %. he left no heirs or persons entitled to the same. 7%ere to file Regional 4rial Court of the place where the deceased was resident, or in which he had estste, if he was a nonresident.

Parties in a petition for esc%eat *scheat proceeding must be initiated by the Solicitor General. 0ll interested parties, especially the actual occupant and the adBacent lot owners shall be personally notified of the proceedings and given the opportunity to present their vaid claims, otherwise the property will be reverted to the State 8(an vs. City of *avao, G.R. 2o. G"--%-$, September !(, 1.))'. Notice and Publication 8Sec. !, Rule .1' 1. !. +ate of hearing not more than ( months after entry of order. ,ublication of order at least once a wee for ( consecutive wee s in newspaper of general circulation in the province.

Publication "urisdictional

,ublication of the notice of hearing is a Burisdictional reCuisite, non"compliance with which affects the validity of the proceedings 8*ivino v. .ilario, (! ,hil. .!('.

31

Esc%eat of unclai#ed balances

Fnclaimed balances which include credits or deposits of money, bullion, security or other evidence of indebtedness of any ind, and interest thereon with ban s in favor of any person unheard from for a period of ten 81/' years of more, together with the interest and proceeds thereof shall be deposited with the 3nsular Government of the ,hilippines as the ,hilippine Gegislature may direct 80ct 2o. %.%(, Fnclaimed Balances 0ct, Sec. 1' 0ction to recover unclaimed balances shall be commenced by the Solicitor General in an action for escheat in the name of the ,eople of the ,hilippines in the Regional 4rial Court of the province where the ban is located, in which shall be Boined as parties the ban and such creditors or depositors. 0ll or any member of such creditors or depositors or ban s, may be included in one action. 83d., Sec. %# Republic vs. Court of ;irst 3nstance of 1anila and ,res.. RoDas Rural Ban , 3nc., G.R. 2o. G"%/%)1, 0ugust %/, 1.))'

3. )emed! of respondent a#ainst petition- period for filin# a claim

Re#ed0 of respondent against esc%eat petition 1otion to dismiss for failure to state a cause of action. where petition for escheat does not state facts which entitle petitioner to the remedy prayed for 8Go -oco ,rocery vs. -acific #iscuit Co., (& ,hil. --%# &ep. vs, -)#, G.R. 2o. G"1(/1(, +ec. %/, 1.(1'# or other grounds for dismissal under the rules 8Municipal Council of an -edro, Laguna vs. Colegio de an Jose, (& ,hil. %1)'. &iling of clai# to estate 8Sec. -, Rule .1' 1. +evisee, legatee, widow, widower or other person entitled to such estate who !. appears and files claim thereto within H 0ears from date of Budgment 82ote< &"year period is prescribed to encourage would"be claimants to be punctilious in asserting their claims, otherwise they may lose them forever in a final Budgment.' %. shall have possession and title thereto or if sold, municipality or city accountable to him for proceeds, after deducting reasonable charges of care of estate. -. Claim not made within said time barred forever.

8. .uardians$ip
Guardians%ip a trust relation in which one person acts for another whom the law regards as incapable of managing his own affairs. 4he person who acts is called the guardian and the incompetent is called the ward. 5asis of Guardians%ip 8,arens ,atriae'

?here minors are involved, the State acts as parens patriae. 3t is the duty of protecting the rights of persons or individuals who because of age or incapability are in an unfavorable position vis"Q"vis other parties. Purpose of Guardians%ip

Safeguard the rights and interests of minors and incompetent persons Courts should be vigilant to see that the rights of such persons are properly protected. Guardian a person in whom the law has entrusted the custody and control of the person or estate or both of an infant, insane, or other person incapable of managing his own affairs.

". .eneral powers and duties of #uardians

32

a. Care and custody of person of the ward and b. 1anagement of his estate, or c. 1anagement of his estate only d. 4he guardian of the estate of a non"resident shall have the management of his estate within the ,hilippines, and no other court than that in which such guardian was appointed shall have Burisdiction over the guardianship 8Sec. 1, Rule .(' $INDS O& G!ARDIANS 1' Legal Guardian such by provision of law without the need for Budicial appointment, as in the case of the parents over the persons of their minor children, or in his absence the mother, with respect to the property of the minor children not eDceeding ,&/,/// in value# 8!' Guardian ad lite#, who is a competent person appointed by the court for purposes of a particular action or proceeding involving a minor# 8%' the -udicial guardian, or a person appointed by the court for the person andOor property of the ward to represent the latter in all civil acts and litigation . Parents as guardians ?hen the property of the child under parental authority is worth ,!,///.// or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. ?hen the property of the child is worth more than ,!,///.//, the father or the mother shall be considered guardian of the childHs property, with the duties and obligations of guardians under these Rules, and shall file the petition reCuired by Section ! hereof. ;or good reasons, the court may, however, appoint another suitable person.8Sec. $, Rule .%' 5ond of parents as guardians of propert0 of #inor. " 3f the mar et value of the property or the annual income of the child eDceeds ,&/,///.//, the parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than 1/R of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians. $ Sec. 1(, RG1'

2. *onditions of t$e bond of t$e #uardian

8a' ?ithin % months after the issuance of letters of guardianship ma e inventory of all the property# 8b' faithfully eDecute the duties of the trust# 8c' render a true and Bust account of all the property of the ward# and 8d' perform all orders of the court 8Sec. 1, Rule .-'

3. )ule on #uardians$ip o'er minors

Governing rule on guardians%ip of #inors

Guardianship of minors as distinguished from IincompetentsJ other than minority is now governed by the RFG* E2 GF0R+302S53, E; 132ERS 80.1. 2o. //%"/%"/&"SC'. Sections 1 and !$ of the RG1 ma e it clear that it shall apply only to petitions for guardianship over the person, property or both, of a minor. ,etitions for guardianship of incompetents who are not minors shall continue to be governed by Rules .!".$ and heard and tried by regular Regional 4rial Courts. Rules .!".$ may therefore be deemed modified by the RG1. 7%o #a0 petition for appoint#ent of guardian of inco#petent A 8Sec. 1, Rule .%'

Relative, friend, or other person on behalf of incompetent who has no parent or lawful guardian, for the appointment of a general guardian for the person or estate or both of such incompetent. 7%o #a0 petition for appoint#ent of guardian of #inorA 8Sec. !, RG1'

33

1. Relative or other person on behalf of the minor !. 1inor himself if 1- years of age or over for the appointment of a general guardian over the person or property, or both, of such minor. 4he petition may also be filed by the Secretary of Social ?elfare and +evelopment and Secretary of 5ealth in the case of an insane minor person who needs to be hospitali6ed. -urisdictional facts 8Sec. !, Rule .%' 1. incompetency of person for whom guardianship is sought# !. domicile Notice of application and %earing 8Sec. %2 / NO P!5LICA*ION RE+!IRED

2otice of hearing of the petition shall be served on 1. persons mentioned in the petition residing in the ,hilippines# !. incompetent himself N minor if 1- years of age or over 8Sec. ), RG1' NO*ICE IS -!RISDIC*IONAL Service of notice upon the minor if 1- years of age or over or upon the incompetent is Burisdictional. ?ithout such notice, the court acCuired no Burisdiction to appoint a guardian 8)ery vs. Lorenzo, -- SCR0 -%1 @1.$!A'. 4he rules do not necessitate that creditors of the minor or incompetent be li ewise identified and notified. 4he reason is simple< because their presence is not essential to the proceedings for appointment of a guardian. 4hey will only insist that the supposed minor or incompetent is actually capacitated to enter into contracts, so as to preserve the validity of said contracts and eep the supposed minor or incompetent obligated to comply therewith. 8Ala%ayri vs. -abale, G.R. 2o. 1&1!-%, 0pril %/, !//)'

0. Adoption
Nature and concept of adoption

0doption is a Buridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. Purpose of Adoption

0doption used to be for the benefit of the adoptor. 3t was intended to afford persons who have no child of their own the consolation of having one by creating thru legal fiction the relation of paternity and filiation where none eDists by blood relationship. ,resent tendency more toward the promotion of the welfare of the child, and enhancement of his opportunities for a useful and happy life. Fnder the law now in force, having legitimate, legitimated, ac nowledged natural children or children by legal fiction is no longer a ground for disCualification to adopt. Ob"ectives of Rule on Adoption a. Best interests of child paramount consideration in all matters relating to his care, custody and adoption. b. 4he state shall provide alternative protection and assistance thru foster care or adoption for every child who is a foundling, neglected, orphaned, or abandoned.

34

Laws on adoption 4he prevailing laws on adoption are RA JHHE 8 +omestic 0doption 0ct of 1..)' and RA JKG? 83nter"Country 0doption 0ct of 1..&'. Rule on Adoption 80.1. 2o. /!"("/!"SC', 0ugust !!, !//! Guidelines issued by the Supreme Court in petitions for adoption. 4he Rule repealed Rules .."1//. 3t covers do#estic adoption 8Secs. 1"!&' and inter3countr0 adoption 8Secs. !("%!'.

". adoption

Distin#uis$ domestic adoption from inter&countr!

$IND 4ype of ,roceeding ?ho may adopt

Do#estic Adoption :udicial 0doption 4he following may adopt< 8a' 0ny ;ilipino citi6en# 8b' 0ny alien possessing the same Cualifications as above stated for ;ilipino nationals# 8c'4he guardian with respect to the ward.

Inter3countr0 Adoption *DtraBudicial 0doption 0n alien or a ;ilipino citi6en permanently residing abroad may file an application for inter"country adoption of a ;ilipino child.

?ho may be adopted

4he following may be adopted< Enly a legally free child may 8a' 0ny person below eighteen be the subBect of inter"country 81)' years of age who has adoption been administratively or Budicially declared available for adoption# 8b' 4he legitimate sonOdaughter of one spouse by the other spouse# 8c' 0n illegitimate sonOdaughter by a Cualified adopter to improve hisOher status to that of legitimacy# 8d' 0 person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter8s' as hisOher own child since minority# 8e' 0 child whose adoption has been previously rescinded# or 8f' 0 child whose biological or adoptive parent8s' has died# ,rovided, 4hat no proceedings shall be initiated within siD 8(' months from the time of death of said parent8s' 8Section )' ;amily Court of the place where R4C having Burisdiction over the adopter resides the child, or with the 3nter" Country 0doption Board, through an intermediate agency, whether

?here to file application

35

governmental or an authori6ed and accredited agency, in the country of the prospective adoptive parents. 8Section 1/' ?hat petition for adoption may include 1ay include prayer for change of Enly petition for adoption. name, rectification of simulated birth or declaration that the child is a foundling, abandoned, dependent or neglected child. Supervised trial custody period in the ,hilippines for at least siD 8(' months 8Court may reduce period or eDempt parties from trial custody' 8Section 1!' Supervised trial custody period in the ,hilippines for at least siD 8(' months. 8Section 1-'

Supervised trial custody

2.

Domestic Adoption
7%o #a0 adopt 1. 0ny ;3G3,32E " 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 " emotionally and psychologically capable of caring for children " at least 1( yrs. older than the adoptee N may be waived when adopter is biological parent of adoptee or is spouse of adopteeHs parent " in a position to support and care for his children in eeping with means of the family. !. 0ny 0G3*2 possessing same Cualifications, subBect to certain conditions.

8!S5AND AND 7I&E '!S* -OIN*L6 ADOP*

*9C*,43E2S< a' if one spouse see s to adopt legitimate child of the other# b' if one spouse see s to adopt his own illegitimate child 8provided the other spouses signified his consent thereto' c' if the spouses are legally separated from each other. 3n case husband and wife Bointly adopt or one spouse adopts the illegitimate child of the other, Boint parental authority shall be eDercised by the spouses. 7%ose consent necessar0 1. biological parents of adoptee, if nown N5owever, consent of biological parents, even if they are nown, is not necessary if they have 0B02+E2*+ the child 8Lang vs. CA, !.) SCR0 1!) @1..)A'. !. %. -. &. adoptee, if 1/ years of age or older legitimate or adopted children of adopter or adoptee, if 1/ years of age or older illegitimate children of adopter, if living with him, if 1/ years of age or older spouse of adopter or adoptee

C%ange of na#e

36

3n case petition also prays for change of name, title or caption must contain< 1. registered name of child !. aliases of other names by which child has been nown %. full name by which child is to be nown P!5LICA*ION -!RISDIC*IONAL 0doption is action in rem involves the status of persons. Decree of Adoption 3f supervised trial custody S043S;0C4ER> and " court CE2732C*+ from trial custody report and evidence adduced that - adoption shall redound to B*S4 324*R*S4S of adoptee - +*CR** E; 0+E,43E2 issued which shall ta e effect as of date original petition filed even if petitioners DIE before issuance

a. effects of adoption
81' ;or civil purposes the adopted shall be deemed to be a legitimate child of the adoptioners and both shall acCuire the reciprocal rights and obligations arising from the relationship of parents and child, including the right of the adopted to use the surname of the adopters# 8!' 4he parental authority of the parents by nature over the adoped shall terminate and be vested in the adopters, eDcept that if the adopter is the spouse of the parents by nature of the adopted, the parental authority over the adopted shall be eDercised Bointely by both spouses# and 8%' 4he adopted shall remain an intestate heir of his parents and other blood relatives. 80rt. 1)., ;amily Code' Adoption strictl0 between adopter and adopted

3f adopting parent should die before adopted child, latter cannot represent the adopter in the inheritance from the parents and ascendants of the adopter. 0dopted child is not related to the deceased in that case because filiation created by fiction of law is eDclusive between adopted and adopter. By adoption, the adopters can ma e for themselves an heir but they cannot ma e one for their relatives.8&epublic vs. Valencia, G.R. 2o. G"%!1)1, 1arch &, 1.)(' An illegiti#ate c%ild9 upon adoption b0 %er natural fat%er9 #a0 use t%e surna#e of %er natural #ot%er as %er #iddle na#e . 8In the Matter of the Adoption of tephanie )athy Astorga ,arcia, G.R. 2o. 1-)%11, 1arch %1, !//&.'

b.

instances w$en adoption ma! be rescinded

RESCISSION O& ADOP*ION 56 ADOP*EE

,etition 7*R3;3*+ ;iled by adoptee over 1) years of age with assistance of +S?+, if minor by guardian or counsel, if over 1) but incapacitated Grounds committed by 0+E,4*R< 1. repeated physical and verbal maltreatment by adopter despite having undergone counseling !. attempt on life of adoptee %. seDual assault or violence -. abandonment or failure to comply with parental obligations 0doption, being for best interests of child, not subBect to rescission by 0+E,4*R *i#e wit%in w%ic% to file petition

37

3f 132ER within & yrs. after reaching age of maBority 3f 32CE1,*4*24 within & yrs. after recovery from incompetency.

c. Effects of rescission of adoption 8Rule on 0doption, Sec. !%'

8a' parental authority of the biological parent of the adoptee, if nown, or the legal custody of +S?+ is restored if the adoptee is still a minor or incapacitated# 8b' reciprocal rights and obligations of the adopter and adoptee to each other are eDtinguished# 8c' succession rights revert to their status prior to adoption, as of the date of Budgment of rescission, but vested rights acCuired prior to rescission are to be respected 8d' court shall order adoptee to use the name stated 3n the original birth or foundling certificate 8e' court shall order the Civil Registrar where the adoption decree was registered to cancel the new birth certificate of the adoptee and reinstate the original birth or foundling certificate

3. 5nter&countr! Adoption a. w$en allowed

3nter"country adoption of ;ilipino children by foreign nationals and ;ilipino citi6ens permanently residing abroad is allowed by law if such children cannot be adopted by Cualified ;ilipino citi6ens or aliens.

b. functions of t$e )%* 93amil! *ourt :

0 verified petition for inter"country adoption may be filed by a foreign national or ;ilipino citi6en permanently residing abroad with the ;amily Court having Burisdiction over the place where the child resides or may be found. 3ts functions are 81' receive the application, 8b' assess the Cualification of the prospective adopter and 8%' refer its findings, if favorable, to the 3nter"Country 0doption Board. 4he latter, on its own, however, can receive the original application 8R0 )/-%, Sec. 1/# Rule on 0doption, Secs. !) = %!'' 4he Inter3Countr0 Adoption 5oard is the central authority in matters relating to inter" country adoption. 3t is the policy"ma ing body for purposes of carrying out the provisions of the law, in consultation and coordination with the +S?+, the different child"care and placement agencies, adoptive agencies as well as non"governmental organi6ations engaged in child care and placement activities 8R0 )/-%, Sec. -'.

c. ;best interest of t$e minor< standard

3nter"country adoption is allowed only when the same shall prove beneficial to the childHs best interests, and shall serve and protect hisOher fundamental rights 8R0 )/-%, Sec. !' Enly a child legally available for domestic adoption may be the subBect of inter"country adoption 8Rule on 0doption, Sec. !.'. &inancial @ualification in adoption Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would"be adopted child or children, in eeping with the means of the family..8 Landingin vs. &epublic, G.R. 2o. 1(-.-), :une !$, !//('

=. +rit of 4abeas *orpus

38

Rule 132 /abeas &orpus *o w%at %abeas corpus e.tends 8Sec. 1' 1. 0ll cases of illegal confinement of detention !. by which any person is deprived of his liberty, or %. by which the rightful custody of any person is withheld from the thereto Purpose of %abeas corpus relieve a person from unlawful restraint. Specifically< 1. to obtain immediate relief from illegal confinement !. to liberate those who may be imprisoned without sufficient cause %. to deliver them from unlawful custody *ssentially a writ of inCuiry and is granted to test the right under which a person is detained 8Velasco v. CA, !-& SCR0 ($$'. 3t is a remedy intended to determine whether the person under detention is held under lawful authority 8 o%bong v. CA, !1, 1.(('. 3t is a summary remedy. 8Caballes vs. CA, G.R. 2o. 1(%1/), ;ebruary !%, !//&' 7%en constitutional rig%ts disregarded / writ #a0 issue *Dceptional remedy to release a person whose liberty is illegally restrained such as when the constitutional rights of the accused are disregarded. Such defect results in the absence or loss of Burisdiction and therefore invalidates the trial and conseCuent conviction of the accused. 4hat void Budgment may be challenged by collateral attac1 which precisely is the function of habeas corpus. 4his writ may issue even if another remedy which is less effective may be availed of failure by accused to perfect his appeal before the C0 does not preclude recourse to the writ. 4he writ may be granted upon a Budgment already final 8Chavez v. CA, !- SCR0 ((% @1.()A'.

person entitled

".

*ontents of t$e petition

a. 4hat the person in whose behalf the application is made is imprisoned or restrained of his liberty# b. 4he officer or name of the person by whom he is so imprisoned or restrained# c. 4he place where he is so imprisoned or restrained, if nown# d. Copy of the commitment or caue of detention of such person. 3f it can be procured without any legal authority, such fact shall appear. 8Sec. %'

2.

*ontents of t$e )eturn

a. ?hether he has or has not the party in his custody or power, or under restraint# b. 3f the party is in his custody or power, or under restraint "" the authority and the true and whole cause thereof, with a copy of the writ, order, eDecution, or other processes upon which the party is held c. 3f the party, etc. , and is not produced nature and gravity of sic ness or infirmity d. 3f the party was in his custody, etc. and has transferred such custody or restraint to another to whom, at what time, for what cause and by what authority such transfer was made. 8Sec. 1/'

3. Distin#uis$ peremptor! writ from preliminar! citation

Pere#ptor0 writ of %abeas corpus unconditionally commanding the respondent to have the body of the detained person before the court at a time and place therein specified. Preli#inar0 citation reCuiring the respondent to appear and show cause why the peremptory writ should not be granted.

39

Order to produce bod0 not a grant of t%e re#ed0 of %abeas corpus

3n a habeas corpus petition, the order to present an individual before the court is a preliminary step in the hearing of the petition. 4he respondent must produce the person and eDplain the cause of his detention. 5owever, this order is not a ruling on the propriety of the remedy or on the substantive matters covered by the remedy. 4hus, the CourtHs order to the Court of 0ppeals to conduct a factual hearing was not an affirmation of the propriety of the remedy of habeas corpus. 8In the Matter of the -etition for .abeas Corpus of Ale2ano vs. Cabuay, G.R. 2o. 1(/$.!, 0ugust !&, !//&

4. +$en not proper6applicable

a. ;or asserting or vindicating denial of right to bail 8*nrile vs. Sala6ar, 1)( SCR0 !1$ @1../A' b. ;or correcting errors in appreciation of facts andOor in the application of law. 3t is not a writ of error. 8Sotto vs. +irector of ,risons, 1ay %/, 1.(!'.

(.

+$en writ disallowed6disc$ar#ed aut$ori>ed 8Sec. -' a. ?hen the person alleged to be restrained of his liberty is in the custody of an officer 1. under process issued by a court or Budge or !. by virtue of a Budgment or order of a court of record and %. the court or Budge had Burisdiction to issue the process, render the Budgment or ma e the order the writ shall not be allowed b. ?hen a person is 1. charged with or !. convicted of an offense or %. suffering imprisonment under lawful Budgment his discharge shall not be authori6ed Distin#uis$ from writ of

2.

amparo

and

$abeas

data 8See

+iagram' 7RI* O& +*;32343E2 8A5EAS CORP!S B.abeas corpusC is a Gatin phrase which literally means Iyou have the body.J 3t 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 capture and detention, to do, submit to, and receive whatsoever the court or Budge awarding the writ shall consider in that behalf. A'PARO 3t is a remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. 4he writ covers eDtralegal illings and enforced disappearances or threats thereof. 8A5EAS DA*A 3t 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 data or information regarding the person, family, home and correspondence of the aggrieved party. Sec. 1 4o any person

0703G0B3G34>

Sec. 1 4o all cases of illegal

Sec. 1 4o any person whose

40

confinement or detention<

right to life, liberty and security is violated or threatened with violation 1. By which any person by an unlawful act or is deprived of his liberty# omission of a public or official or employee, or of a private individual or !. By which the rightful entity. custody of any person is withheld from the person entitled thereto.

whose right to privacy in 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 engaged in< 1. Gathering !. Collecting %. Storing Ef data or information regarding the person family, home and correspondence of the aggrieved party.

,*4343E2*R

Sec. % By the party for whose relief it is intended, or by some other person in his behalf

Sec. !

Sec. !

By the aggrieved party, General rule< or by any Cualified person or entity in the 4he aggrieved party order provided in Sec. ! *Dcept< 3n cases of eDtralegal illings and enforced disappearances< 1. 3mmediate family# !. 3n default of no. 1, ascendant, descendant or collateral relative within the -th civil degree of consanguinity or affinity.

7*2F*

3f filed with R4C, where detainee is detained .

Sec. % SC, C0 and SB R4C of the place where the threat, act or omission was committed or any of its elements occurred.

Sec. % SC, C0 and SB R4C< 1. ?here petitioner resides# or !. ?here respondent resides# or %. ?hich has Burisdiction over the place where data or information is gathered, etc.

41

0ll at the option of petitioner. *94*24 E; *2;ERC*0B3G34> SC, C0 and SB< anywhere in the ,hilippines R4C< only within its Budicial district ?5*2 4E ;3G*O *9*1,43E2 ;RE1 +ECL*4 ;**S Sec. ! En any day and at any time Sec. % En any day and at any time. ,etitioner eDempt from doc et fees Sec. ( 3ndigent petitioner eDempt from doc et fees Sec. $ 0nywhere in the ,hilippines 0nywhere in the ,hilippines

S*4432G E; 5*0R32G

Sec. 1! 5earing on return

2ot later than $ days 2ot later than 1/ from date of issuance of days from date of writ issuance of writ Sec. ) 3f the writ cannot be served personally on respondent, the rules on substituted service shall apply Sec. . 3f the writ cannot be served personally on respondent, the rules on substituted service shall apply

5E? S*R7*+

Sec. $ Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to ma e return of service. 3f that person cannot be found, or has not the prisoner in custody then the service shall be made on any person having or eDercising such custody

;3G32G E; R*4FR2

Sec. 1/

Sec. .

Sec. .

Signed and shall also 7erified written return 7erified written be sworn to if the within & wor days from return within & days prisoner is not produced service of writ from service of writ " cannot be eDtended eDcept on highly meritorious grounds *;;*C4 E; ;03GFR* 4E ;3G* R*4FR2 Sec. 1! 3n case respondent fails to file a return, the court, Bustice or Budge shall proceed to hear the petition eD parte "may be reasonably eDtended by the court for Bustifiable grounds Sec. 13n case respondent fails to return, the court, Bustice or Budge shall proceed to hear the petition eD parte, granting petitioner such relief as the petition may warrant unless the court in its discretion reCuires petitioner to submit evidence.

42

SF110R> 5*0R32G

Sec. 1%

Sec. 1&

4he hearing on the Same as ?E0 petition shall be summary. 5owever, the court, Bustice or Budge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. 4he hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. 324*R31 R*G3*;S S*C. 1! 1. Fnless for good cause shown, the hearing is adBourned, in which event the court shall ma e an order for the safe eeping of the person imprisoned or restrained as the nature of the case reCuires# !. 4he court or Budge must be satisfied that the personPs illness is so grave that he cannot be produced without any danger. :F+G1*24 Sec. 1& ?hen the court or Budge has eDamined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confinement, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. 3f the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith Sec. 1) 4he court shall render Budgment within ten 81/' days from the time the petition is submitted for decision. 3f the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate# otherwise, the privilege shall be denied. Sec. 1( Same with ?E0 with an addition that upon finality, the Budgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, Bustice or Budge within & wor ing days. Sec. 18a' 4emporary ,rotection Erder. 8b' 3nspection Erder. 8c' ,roduction Erder. 8d' ?itness ,rotection Erder.

43

released. 0,,*0G Sec. 1& in relation to Sec. 1. Sec. 1. Sec. % Rule -1 and Sec. %. of B, 1!.< Rule -& by petition for Same as ?E0 review on certiorari with -) hours from notice of peculiar features< Budgment appealed from by ordinary appeal 1. 0ppeal may raise Cuestions of fact or law or both# !. ,eriod of appeal shall be & wor ing days from the date of notice of the adverse Budgment# %. Same priority as habeas corpus cases 32S434F43E2 E; S*,0R04* 0C43E2S Sec. !1 4his Rule shall not preclude the filing of separate criminal, civil or administrative actions. *;;*C4 E; ;3G32G CR31320G 0C43E2 Sec. ! Sec. !/ Same as ?E0

Sec. !1

?hen a criminal action Same as ?E0 has been commenced, no separate petition for the writ shall be filed. 4he reliefs under the writ shall be available by motion in the criminal case. CE2SEG3+043E2 Sec. !% Sec. !!

?hen a criminal action Same as ?E0 is filed subseCuent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. ?hen a criminal action and a separate civil action are filed subseCuent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action.

Grant of writ

?hen court is satisfied that prisoner does not desire to appeal, the prisoner shall be forthwith released 8Sec. 1&, Rule 1/!'

44

,eriod to appeal within -) hours from notice of Budgment or final order appealed from 80.1.2. /1"1"/%"SC, :uly 1., !//1'. 8abeas corpus as a post3conviction re#ed0

4he writ of habeas corpus applies to all cases of illegal confinement or detention in which individuals are deprived of liberty. 4he writ may not be availed of when the person in custody is under a Budicial process or by virtue of a valid Budgment. 5owever, as a post"conviction remedy, it may be allowed when, as a conseCuence of a Budicial proceeding, any of the following eDceptional circumstances is attendant< 81' there has been a deprivation of a constitutional right resulting in the restraint of a person# 8!' the court had no Burisdiction to impose the sentence# or 8%' the imposed penalty has been eDcessive, thus voiding the sentence as to such eDcess. $,o vs. *i%agiba, G.R. 2o. 1&1)$(, :une !1, !//&D Andal v. -eople, %/$ SCR0 (/& @1...A' No rig%t to bail w%ere applicant is serving sentence b0 reason of final "udg#ent

Respondent Budge contends that under Section 1-, Rule 1/! of the Rules of Court, he has the discretion to allow 4e to be released on bail. 5owever, the Court reiterates its pronouncement in its Resolution of ;ebruary 1., !//1 in G.R. 2os. 1-&$1&"1) that Section 1-, Rule 1/! of the Rules of Court applies only to cases where the applicant for the writ of habeas corpus is restrained by virtue of a criminal charge against him and not in an instance, as in the case involved in the present controversy, where the applicant is serving sentence by reason of a final Budgment. 8Vicente vs. Ma2aducon, 0.1. 2o. R4:"/!"1(.) 8;ormerly EC0 3,3 2o. //" 1/!-"R4:', :une !%, !//&' 'arital rig%ts including co3venture and living in con"ugal dwelling #a0 not be enforced b0 t%e e.traordinar0 writ of %abeas corpus) 8Ilusorio vs. #ildner, et.al. , G.R. 2o. 1%.)/), 1ay 1!, !///' 7rit of %abeas corpus cannot be issued once person is c%arged wit% a cri#inal offense

Fnder Section 1, Rule 1/! of the Rules of Court, the writ of habeas corpus eDtends to Iall case of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.J 4he remedy of habeas corpus has one obBective< to inCuire into the cause of detention of a person, and if found illegal, the court orders the release of the detainee. 3f, however, the detention is proven lawful, then the habeas corpus proceedings terminate. 8In the Matter of the -etition for .abeas Corpus of Eunting, G.R. 2o. 1($1.%, 0pril 1., !//(' 8abeas corpus in custod0 cases

5abeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. Fnder 0rticle !11 of the ;amily Code, respondent Goran and petitioner 1arie 0ntonette have Boint parental authority over their son and conseCuently Boint custody. ;urther, although the couple is separated de facto, the issue of custody has yet to be adBudicated by the court. 3n the absence of a Budicial grant of custody to one parent, both parents are still entitled to the custody of their child. 3n the present case, private respondentHs cause of action is the deprivation of his right to see his child as alleged in his petition. 5ence, the remedy of habeas corpus is available to him. 3n a petition for habeas corpus, the childHs welfare is the supreme consideration. 4he Child and >outh ?elfare Code uneCuivocally provides that in all Cuestions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration. 8 alientes vs. Abanilla, G.R. 2o. 1(!$%-, 0ugust !., !//(' Retroactive effect of favorable law " -eople vs. Caco, !(. SCR0 !$1 81..$'

45

1. Caco sentenced to life imprisonment for violation of +angerous +rugs 0ct 8R0 (-!&' !. ;iled motion for modification of sentence pursuant to R0 $(&. and ,eople v. Simon that where mariBuana less than !// grams penalty is prision correccional %. ,etition granted provisions of R0 $(&. favorable to accused should be given retroactive effect. -. ?here decision already final, appropriate remedy of accused to secure release from prison is petition for habeas corpus #ernarte vs. CA, !(% SCR0 %!% 81..('

1. Ence person detained is duly charged in court, he may no longer Cuestion his detention by petition for habeas corpus !. Remedy< motion to Cuash the information andOor warrant of arrest %. ;iling of bond for temporary release is waiver of illegality of detention -aredes vs. #, 1.% SCR0 -(-< absence of preliminary investigation not a ground for habeas corpus. Remedy< motion to Cuash warrant of arrest andOor information, or as for investigationOreinvestigation

2ote< Rule 11-, Sec. !( of !/// Revised Rules of Criminal ,rocedure< Bail not a bar to obBections on illegal arrest, lac of or irregular preliminary investigation, provided he raises them B*;ER* entering his plea LarraFaga vs. CA, !)$ SCR0 &)1 81..)' Lidnapping = serious illegal detention

1. ;iling of charges and issuance of warrant of arrest cures defect of invalid detention !. 0bsence of preliminary investigation will not nullify information and warrant of arrest ,alvez vs. CA, !%$ SCR0 ()&

1. 5abeas corpus and certiorari may be ancillary where necessary to give effect to supervisory power of higher courts !. 5abeas corpus reaches body and Burisdictional matters but not the records %. Certiorari reaches record but not the body -. 2ot appropriate for asserting right to bail file petition to be admitted to bail Velasco vs. CA, !-& SCR0 (($ 81..&' *ven if arrest illegal, supervening events may bar his release or discharge from custody, such as filing of complaint and issuance of order denying petition to bail. Recent -urisprudence

Section 1, Rule 1/! of the Rules of Court provides that a petition for the issuance of a writ of habeas corpus may be availed of in cases of illegal confinement by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. 4he writ may also be issued where, as a conseCuence of a Budicial proceeding, 8a' there has been a deprivation of a constitutional right resulting in the restraint of a person# 8b' the court had no Burisdiction to impose the sentence# or 8c' an eDcessive penalty has been imposed, as such sentence is void as to such eDcess. 8 In the Matter of the Application for the 5rit of .abeas Corpus &eclassifying entence to &.A. )'. >G9G in #ehalf of &ogelio 'r%illa, et al. vs, (he *irector, #ureau of Corrections, G.R. 2o. 1$/-.$, :anuary !!, !//$' ,etitioner was detained pursuant to a final Budgment of the Kue6on City R4C convicting him for the crimes of carnapping and illegal possession of firearms. 5e is therefore not entitled to the writ of habeas corpus. 4he rule is that if a person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or Budge or by virtue of a Budgment or order of a court of

46

record the writ of habeas corpus will not be allowed. 8 #arredo vs. Vinarao,. G.R. 2o. 1()$!), 0ugust !, !//$' Ence a person detained is duly charged in court, he may no longer Cuestion his detention through a petition for issuance of a writ of habeas corpus. 5is remedy would be to Cuash the information andOor the warrant of arrest duly issued. 4he writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. 4he term IcourtJ includes Cuasi"Budicial bodies or governmental agencies authori6ed to order the personHs confinement, li e the +eportation Board of the Bureau of 3mmigration. 4he provisional or temporary release of Gao >uan also effectively granted the petition for habeas corpus insofar as the discharge of the detainee is concerned, since the main prayer in a petition for habeas corpus relates to the release or discharge of the detainee. 4he general rule is that the release, whether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic. 8'ffice of the olicitor ,eneral vs. Judge de Castro, 0.1. 2o. R4:"/("!/1) 8;ormerly 0dm. 1atter EC0"3,3 2o. /&"!%(/"R4:', 0ugust %, !//$' 3n general, the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held. 0 prime specification of an application for a writ of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint of liberty. 8In the Matter of the -etition of .abeas Corpus of "ufe%ia &odriguez vs. Luisa Villanueva, G.R. 2o. 1(.-)!, :anuary !., !//)' 2otably, the record shows that :udge ,erello granted the writs of habeas corpus even without the pertinent copies of detention and Budgment of conviction. 4his is contrary to the provisions of Section %8d' of Rule 1/! of the Rules of Court. 4he Rules clearly reCuire that a copy of the commitment or cause of detention must accompany the application for the writ of habeas corpus. 8'ffice of the Court Ad%inistrator vs. Judge -erello , 0.1. 2o. R4:"/&"1.&!, +ecember !-, !//)' Strict compliance with the technical reCuirements for a habeas corpus petition as provided in the Rules of Court may be dispensed with where the allegations in the application are sufficient to ma e out a case for habeas corpus. 2onetheless, we agree with the ESG that petitioner is not entitled to the issuance of the writ. 0 convict may be released on parole after serving the minimum period of his sentence. 5owever, the pendency of another criminal case is a ground for the disCualification of such convict from being released on parole. 8 Fletcher vs. (he *irector of #ureau of Corrections , F+L"1-/$1, :uly 1$, !//.' 4he writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. 4he term IcourtJ in this conteDt includes Cuasi"Budicial bodies of governmental agencies authori6ed to order the personHs confinement, li e the +eportation Board of the Bureau of 3mmigration. Gi ewise, the cancellation of his bail cannot be assailed via a petition for habeas corpus. ?hen an alien is detained by the Bureau of 3mmigration for deportation pursuant to an order of deportation by the +eportation Board, the Regional 4rial Courts have no power to release such alien on bail even in habeas corpus proceedings because there is no law authori6ing it.8,o, r. vs. &a%os, G.R. 2o. 1($&(., September -, !//.' 0 writ of habeas corpus eDtends to all cases of illegal confinement or detention or by which the rightful custody of person is withheld from the one entitled thereto. Respondent, as the Budicial guardian of Gulu, was duty"bound to care for and protect her ward. ;or her to perform her obligation, respondent must have custody of Gulu. 4hus, she was entitled to a writ of habeas corpus after she was unduly deprived of the custody of her ward. 8.ernandez vs. an Juan/ antos, G.R. 2o. 1((-$/, 0ugust $, !//.'

?. )ule on *ustod! of =inors and +rit of 4abeas *orpus in )elation to *ustod! of =inors 80.1. 2o. /%"/-"/-"SC' too effect 1ay
1&, !//% a. 0 verified petition for the rightful custody of a minor may be filed by any person claiming such right. 4he petition shall be filed with the ;amily Court of the province or city where the petitioner resides or where the minor may be found.

47

b. 0fter trial, the court shall render Budgment awarding custody of the minor to the proper party considering the best interests of the minor. c. 5owever, if it appears that both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor or his oldest brother or sister, or any reputable person to ta e charge of such minor, or commit him to any suitable home for children. d. 4he court may issue any order that is Bust and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody. Court of Appeals %as "urisdiction to issue writs of %abeas corpus in cases involving custod0 of #inors

4here is nothing in R0 )%(. which revo ed the Court of 0ppealsH Burisdiction to issue writs of habeas corpus involving the custody of minors. 8 In the Matter of Application for the Issuance of a 5rit of .abeas CorpusA (hornton vs. (hornton , G.R. 2o. 1&-&.), 0ugust 1(, !//-' 3n fact, the Court of 0ppeals and Supreme Court have concurrent Burisdiction with family courts in habeas corpus cases where the custody of minors is involved. 8Madri?an vs. Madri?an, G.R. 2o. 1&.%$-, :uly 1!, !//$'

,. +rit of Amparo (A)') No) KB3F3>E3SC) - October EG9 EKKB

1. Coverage

=See Diagra# under Definition2

IE.tralegal 1illingsJ illings committed without due process of law, i.e., without legal safeguards or Budicial proceedings. IEnforced disappearancesJ attended by the following characteristics< an arrest, detention or abduction of a person by a government official or organi6ed groups or private individuals acting with the direct or indirect acCuiescence of the government# the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to ac nowledge the deprivation of liberty which places such persons outside the protection of law.

2. Distin#uis$ from $abeas corpus and $abeas data =See Diagra#2 3. Differences between Amparo and searc$ warrant
4he production order under the 0mparo Rule should not be confused with a search warrant or law enforcement under 0rt. 333, Sec. ! of the Constitution. 4he 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 as such respondents. 3nstead, the amparo production order may be limited to the production of documents or things under Sec. 1, Rule !$ of the Rules of Civil ,rocedure 8 ecretary of )ational *efense vs. Manalo, G.R. 2o. 1)/./(, Ectober $, !//)'.

4. +$o ma! file =See Diagra#2 (. *ontents of return

8a' Gawful defenses to show that respondent did not violate or thereaten with violation the right to life, liberty or security of the aggrieved party, through any act or omisson . 8b' Steps or actions ta en by the respondent to determine the facts or whereabouts of the aggrieved party and person Os responsible for the threat, act or omission# 8c' 0ll relevant information in the possession of respondent pertaining to the threat, act or omission against the aggrieved party# 8d' 3f respondent is a public official or employee, the return shall further state the actions that have been or will be ta en< 8i' to verify the identity of the aggrieved party#

48

8ii' 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# 8iii' to identify witnesses and obtain statements from them concerning the death or disappearance 8iv' 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# 8v' to identify and apprehend the person or persons involved in the death or disappearance# and 8vi' to bring the suspected offenders before a competent court. 0 general denial of the allegations in the petition shall not be allowed.

2. Effects of failure to file return =See Diagra#2 ?. 1mnibus wai'er rule

*efenses )ot -leaded *ee%ed 5aived. ""0ll defenses shall be raised in the return, otherwise, they shall be deemed waived 8Sec. 1/'.

@. Procedure for $earin# =See Diagra# on Su##ar0 8earing2 A. 5nstitution of separate action =See Diagra#2 "B. Effect of filin# of a criminal action =See Diagra#' "". *onsolidation =See Diagra#2 "2. 5nterim reliefs a'ailable to petitioner and respondent
=See Diagra#2

"3. Cuantum of proof in application for issuance of writ of Amparo

#urden of proof and standard of dilligence re1uired 4he parties shall establish their claims by substantial evidence. Respondent private individual or entity prove that ordinary diligence as reCuired by applicable laws, rules and regulations was observed in the performance of duty. Respondent public official or employee prove that eDtraordinary diligence as reCuired, etc. was observed in the performance of duty. - cannot invo e presumption that official duty has been regularly performed to evade ressponsibility or liability 8Sec. 1$' ?rit of 0mparo provides rapid "udicial relief as it parta es of a summary proceeding that reCuires only substantial evidence to ma e the appropriate reliefs available to the petitioner# not an action to determine criminal guilt reCuiring proof beyond reasonable doubt, or liability for damages reCuiring preponderance of evidence, or administrative responsibility reCuiring substantial evidence that will reCuire full and eDhaustive proceedings 5ot% preventive and curative

3t is preventive in that it brea s the eDpectation of impunity in the commission of these offenses# it is curative in that it facilitates the subseCuent punishment of perpetrators as it will inevitably yield leads to subseCuent investigation and action. -urisprudence

49

4he threatened demolition of a dwelling by virtue of a final Budgment of the court is not included among the enumeration of rights for which the remedy of a writ of amparo is made available. 4heir claim to their dwelling, assuming they still have any despite the final and eDecutory Budgment adverse to them, does not constitute right to life, liberty and security. 4here is, therefore, no legal basis for the issuance of the writ of amparo. 8Canlas vs. )apico .o%eo3ners Association I H IIII, Inc.,. G.R. 2o. 1)!$.&, :une &, !//)' Fnder these legal and factual situations, we are far from satisfied with the prima facie eDistence of the ultimate facts that would Bustify the issuance of a writ of amparo. Rather than acts of terrorism that pose a continuing threat to the persons of the petitioners, the violent incidents alleged appear to us to be purely property"related and focused on the disputed land. 4hus, if the petitioners wish to see redress and hold the alleged perpetrators criminally accountable, the remedy may lie more in the realm of ordinary criminal prosecution rather than on the use of the eDtraordinary remedy of the writ of amparo. 8 (apuz vs. Judge del &osario, G.R. 2o.1)!-)-, :une 1$, !//)' ?hile the right to life under 0rticle 333, Section 1 guarantees essentially the right to be alive " upon which the enBoyment of all other rights is preconditioned " the right to security of person is a guarantee of the secure Cuality of this life. ;irst, the right to security of person is Ifreedom from fear.J 8Fniversal +eclaration of 5uman Rights @F+5RA and 3nternational Covenant on Civil and ,olitical Rights @3CC,RA' 4he ,hilippines is a signatory to both the F+5R and the 3CC,R. Second, the right to security of person is a guarantee of bodily and psychological integrity or security. 80rticle 333, Section 1! of the 1.)$ Constitution' 4hird, the right to security of person is a guarantee of protection of oneHs rights by the government. ,rotection includes conducting effective investigations, organi6ation of the government apparatus to eDtend protection to victims of eDtralegal illings or enforced disappearances 8or threats thereof' andOor their families, and bringing offenders to the bar of Bustice. 8(he ecretary of )ational *efense vs. Manalo, G.R. 2o. 1)/./(, Ectober $, !//)'

1. +rit of 4abeas Data 9A.=. ,o. B@&"&"2&S*: / &ebruar0 E9 EKKJ ". Scope of writ =See Diagra# under Definition' 2. 3. 4. (. A'ailabilit! of writ =See Diagra# under Availabilit02 Distin#uis$ from 4abeas *orpus and Amparo =See Diagra#2 +$o ma! file =See Diagra#2 *ontents of petition

8a' 4he personal circumstances of the petitioner and the respondent# 8b' 4he manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party# 8c' 4he actions and recourses ta en by the petitioner to secure the data or information# 8d' 4he 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 nown# 8e' 4he reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files ept by the respondent. 3n case of threats, the relief may include a prayer for an order enBoining the act complained of# and 8f' Such other relevant reliefs as are Bust and eCuitable 8Sec. ('.

2.

*ontents of return

50

8a' Gawful defenses such as national security, state secrets, priviliged communication, confidentiality of the source of information of media and others# 8b' 3f respondent in charge, in possession or in control of the data or information subBect of the petition "" 8i' a disclosure of the data or information about petitioner, nature of such data or information, and purpose of its collection# 8ii' steps or actions ta en by respondent to ensure the security and confidentiality of the data or information# 8iii' currency and accuracy of the data and information held# and 8c' other allegations relevant to the resolution of the proceeding# 0 general denial of the allegations in the petition shall not be allowed.

?.

5nstances w$en petition $eard in c$ambers

5earing in chambers may be conducted where respondent invo es the defense that the release of the data or information shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due its nature or privileged character 8Sec.1!'.

@. A.

*onsolidation =See Diagra#2 Effect of filin# a criminal action =See Diagra#2

"B. 5nstitution of separate action =See Diagra#2

-urisprudence

Section ( of the Rule on the ?rit of 5abeas +ata reCuires material allegations of ultimate facts in a petition for the issuance of a writ of habeas data< Specifically, we see no concrete allegations of unBustified or unlawful violation of the right to privacy related to the right to life, liberty or security. 4he petition li ewise has not alleged, much less demonstrated, any need for information under the control of police authorities other than those it has already set forth as integral anneDes. 4he necessity or Bustification for the issuance of the writ, based on the insufficiency of previous efforts made to secure information, has not also been shown. 3n sum, the prayer for the issuance of a writ of habeas data is nothing more than the Ifishing eDpedition < that this Court " in the course of drafting the Rule on habeas data " had in mind in defining what the purpose of a writ of habeas data is not. 3n these lights, the outright denial of the petition for the issuance of the writ of habeas data is fully in order. 8(apuz vs. Judge &osario, G.R. 2o.1)!-)-, :une 1$, !//)'

P. Change of Na
Rule 133 &(ange of !ame Purpose of Rule

Fnder 0rt. %$(, Civil Code no person can change his name or surname without Buridical authority 3nvolving substantial changes, obBective is the prevention of fraud. Nature of proceeding

4o establish the status of a person involving his relation with others, that is, his legal position in, or, with regard to the rest of the community 7%o #a0 file petition

51

I,ersonJ all natural persons regardless of status 1. 0dopted child 8Rep. v. ?ong, !/. SCR0 1).' !. 0lien " " domiciled in the ,hilippines, not one temporarily staying -urisdictional re@uire#ents 1. ,ublication of petition for % consecutive wee s in newspaper, etc. !. Both title or caption and body shall recite a. name or names or alias of applicant b. cause for which change of name is sought c. new name as ed for

Reason< change of name a matter of public interest - petitioner might be in rogues gallery or hiding to avoid service of sentence or escaped from prison - if alien might have given case for deportation, or subBect of deportation order

". Differences under )ule "B3, )A AB4@ and )ule "B@

Rule >K? Rule or Gaw Change of 2ame Rule >KJ R)A) FKGJ

CancellationO Correction Clerical *rror 0ct of *ntries in the Civil Registry Change of first name or nic name and corrrection of civil registry entries 8only typographical or clerical errors' 0ny person having direct and personal interest in the correction of a clerical or typographical error in an entry andOor change of first name or nic name. 8Section %' 1. Gocal civil registry office of the city or municipality where the record being sought to be corrected or changed is ept# !. Gocal civil registrar of the place where the interested party is presently residing or domiciled# %. ,hilippine Consulate

SubBect 1atter

Change of full name or Cancellation or family name 8substantial correction of civil corrections' registry entries 8substantial corrections'

?ho may ;ile

0 person desiring to change his name. 8Section 1'

0ny person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register. 8Section 1'

7enue

R4C of the province in R4C of city or province which petitioner resided where the for % years prior to filing. corresponding civil registry is located.

Contents of petition

8a' 4hat petitioner has been a bona fide resident of the province where the petition is filed for at least three 8%' years prior to the date of such filing#

8a' ;acts necessary to establish the merits of petition# 8b' ,articular erroneous entry or entries, which are sought to be corrected andOor the

52

8b' 4he cause for which the change of petitionerPs name is sought# 8c' 4he name as ed for. 8Section !'

change sought to be made. ,etition shall be supported by the following documents< 81' 0 certified true machine copy of the certificate or of the page of the registry boo containing the entry or entries sought to be corrected or changed# 8!' 0t least two 8!' public or private documents showing the correct entry or entries upon which the correction or change shall be based# and 8%' Ether documents which petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of petition. 8Section &'

Grounds

1. 2ame is ridiculous, Fpon good and valid tainted with dishonor grounds. and eDtremely difficult to write of pronounce# !. ConseCuence of change of status# %. 2ecessity to avoid confusion# -. 5aving continuously used and been nown since childhood by a ;ilipino name, unaware of her alien parentage# &. 0 sincere desire to adopt a ;ilipino name to erase signs of former alienage all in good faith and without preBudicing anybody.

1. ,etitioner finds the first name or nic name to be ridiculous, tainted with dishonor or eDtremely difficult to write or pronounce# !. 4he new first name or nic name has been habitually and continuously used by petitioner and he has been publicly nown by that first name or nic name in the community# or %. 4he change will avoid confusion. 8Section -'

Lind of proceeding

:udicial ,roceeding

:udicial ,roceeding 0dversarial in nature because involves substantial changes and affects the status of an individual

0dministrative ,roceeding

53

?hat to file

;ile a signed and verified petition. .

;ile a verified petition for the cancellation or correction of any entry. 0t least once a wee for three consecutive wee s in a newspaper of general circulation 8notice of hearing' 2o posting

;ile an affidavit.

2otice and ,ublication

0t least once a wee for three consecutive wee s in a newspaper circulation 8notice of hearing' 2o posting

0t least once a wee for two consecutive wee s 8publish the whole affidavit' in change of first name or nic name +uty of the civil registrar or Consul to post petition in a conspicuous place for 1/ consecutive days 4he CivilRegistrar or Consul.

,osting

?ho participates on the 4he Solicitor General or 4he Civil Registrar. part of the Government the proper provincial or city fiscal shall appear on behalf of the Government of the Republic. ?here to appeal< 0ppeal decision to the Court of 0ppeals. 0ppeal decision to the Court of 0ppeals.

0ppeal decision to the Civil Registrar General 8head of 2CSE'.

2.

.rounds for c$an#e of name

4he State has an interest in the names borne by individuals and entities for purposes of identification. 0 change of name is a privilege and not a right, so that before a person can be authori6ed to change his name, he must show proper or reasonable cause, or any compelling reason which may Bustify such change. Grounds for change of name which have been held valid< 1' 2ame is ridiculous, dishonorable, or eDtremely difficult to write or pronounce# !' Change results as a legal conseCuence, as in legitimation# %' Change will avoid confusion# -' ?hen one has continuously used and been nown since childhood by a ;ilipino name, and was unaware of alien parentage# &' Sincere desire to adopt ;ilipino name to erase signs of former alienage, all in good faith and without preBudicing anybody# (' Surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would preBudice public interest. 1iddle names serve to identify the maternal lineage or filiation of a person as well as further distinguish him from others who may have the same given name and surname as he has. 3n the case at bar, the only reason advanced by petitioner for dropping his middle name is convenience 8In &e -etition for Change of )a%e andJor CorrectionJCancellation of "ntry of Civil &egistry of Julian Lin Carulasan 5ang, G.R. 2o. 1&..((, 1arch %/, !//&' Ot%er cases

Fnder 0rt. 1$( of the Civil Code, Giovanni is entitled to change his name as he was never recogni6ed by his father while his mother has always recogni6ed him as her child. 0 change of name will erase the impression that he was ever recogni6ed by his father. 3t is also his best interest as it will facilitate his motherHs intended petition to have him Boin her in the Fnited States. 4he Court will not stand in the way of the reunification of moter and son. 8&epublic of the -hilippines vs. Capote, G.R. 2o. 1&$/-%, ;ebruary !, !//$'

54

4he court shall grant the petition under Rule 1/% only when satisfactory proof has been presented in open court that the order had been published as directed, the allegations in the petition are true, and proper and reasonable causes appear for changing the name of the petitioner. 8R*< ;320G R*,ER4 E2 45* :F+3C30G 0F+34 CE2+FC4*+ 04 45* R4C, BR. ($, ,023KF3, 40RG0C, 0.1. 2o. /("$"-1-"R4C, Ectober 1., !//$' 0s for respondentHs change of name under Rule 1/%, this Court has held that a change of name is not a matter of right but of Budicial discretion, to be eDercised in the light of the reasons adduced and the conseCuences that will follow. 4he trial courtHs grant of respondentHs change of name from :ennifer to :eff implies a change of a feminine name to a masculine name. Considering the conseCuence that respondentHs change of name merely recogni6es his preferred gender, we find merit in respondentHs change of name. Such a change will conform with the change of the entry in his birth certificate from female to male. 8&epublic vs. Cagandahan, G.R. 2o. 1((($(, September 1!, !//)'

C. Absentees
Rule 137 Absentees

". Purpose of t$e rule 2. +$o ma! file- w$en to file

Provisional representative ?hen a person disappears from his domicile, his whereabouts being un nown, and without having left an agent to administer property or the power conferred on the agent has eDpired, an interested party, relative or friend may file a petition in the R4C of the place where the absentee resided before disappearanceo appoint provisionally a representative for him 8Sec. 1'. *rustee or ad#inistrator 0fter ! years without any news or after & years if an agent was left to administer the absenteeHs property, a petition for declaration of absence and appointment of a trustee or administrator may be filed.8Sec. !' Notice and publication re@uired Copies of tne notice and hearing shall be served on nown heirs and creditors and other interested persons and published once a wee for % consecutive wee s in a newspaper of general circulation. 8Sec. -' Declaration of presu#ptive deat%

2o independent action for declaration of presumption of death presumption may arise and be invo ed in an action or special proceeding "4ception Fnder 0rt. -1 of ;amily Code, for purpose of present spouse contracting a second marriage, he must file summary proceeding for declaration of presumptive death of the absentee, without preBudice to the latterHs reappearance. 4his is intended to protect present spouse from criminal prosecution for bigamy under 0rt. %-. of R,C. ?ith Budicial declaration that missing spouse is presumptively dead, good faith of present spouse in contracting marriage is established. Period of absence of spouse before subse@uent #arriage - - consecutive years well founded belief that absent spouse already dead - ! years danger of death

55

). *ancellation )e#istr!

or

*orrection

of

Entries

in

t$e

*i'il

Rule 131 &ancellation or correction of entries in t(e civil registry 7%o #a0 file petition 1. 0ny person interested in any " act " event " decree !. concerning the civil status of persons %. which has been recorded in the civil registry enue Regional 4rial Court of place where corresponding civil registry is located 8Sec. 1' Correction of entr0 under Rule >KJ proceeding in re# / publication binds t%e w%ole world

Substantial corrections or cancellations of entries in civil registry records affecting the status or legitimacy of a person may be effected through the institution of a petition under Rule 1/) of the Revised Rules of Court, with the proper Regional 4rial Court. Being a proceeding in rem, acCuisition of Burisdiction over the person of petitioner is therefore not reCuired in the present case. 3t is enough that the trial court is vested with Burisdiction over the subBect matter. 4he service of the order at 2o. -1) 0rCui6a St., *rmita, 1anila and the publication thereof in a newspaper of general circulation in 1anila, sufficiently complied with the reCuirement of due process, the essence of which is an opportunity to be heard. 4he publication of the order is a notice to all indispensable parties, including 0rmi and petitioner minor, which binds the whole world to the Budgment that may be rendered in the petition. 8 Alba vs. CA, G.R. 2o. 1(-/-1, :uly !., !//&0 Indispensable parties #ust be notified

Fnder Sec. %, Rule 1/) not only the civil registrar but also all persons who have or claim any interest which would be affected by a proceeding concerning the cancellation or correction of an entry in the civil register must be made parties thereto. 2o party could be more interested in the cancellation of RosilynHs birth certificate than Rosilyn herself. 5er filiation, legitimacy, and date of birth are at sta e. 4he lac of summons on Rosilyn was not cured by the publication of the order of the trial court setting the case for hearing for three consecutive wee s in a newspaper of general circulation. Summons must still be served, not for the purpose of vesting the courts with Burisdiction, but to comply with the reCuirements of fair play and due process. 4his is but proper, to afford the person concerned the opportunity to protect her interest if she so chooses. 8Ceruila vs. *elantar* G.R. 2o. 1-/%/&, +ecember ., !//&'

".Entries subject to cancellation or correction under )ule "B@, in relation to )A AB4@

Ad#inistrative correction of clerical or t0pograp%ical errors

4he obvious effect of Republic 0ct ./-) is merely to ma e possible the administrative correction of clerical or typographical errors or change of first name or nic name in entries in the civil register, leaving to Rule 1/) the correction of substantial changes in the civil registry in appropriate adversarial proceedings. 8&epublic v. #ene%erito G.R. 2o. 1-(.(%, 1arch 1&, !//-'. C%ange of na#e under Rule >KJ

56

4he enactment in 1arch !//1 of Republic 0ct 2o. ./-) has been considered to lend legislative affirmation to the Budicial precedence that substantial corrections to the civil status of persons recorded in the civil registry may be effected through the filing of a petition under Rule 1/). ?hen all the procedural reCuirements under Rule 1/) are thus followed, the appropriate adversary proceeding necessary to effect substantial corrections to the entries of the civil register is satisfied. ?ith respect to the correction in CarlitoHs birth certificate of his name from ICarlito :ohnJ to ICarlito,J the same was properly granted under Rule 1/) of the Rules of Court. 0s correctly pointed out by the C0, the cancellation or correction of entries involving changes of name falls under letter IoJ of the following provision of Section ! of Rule 1/)< I*ntries subBect to cancellation or correction. S Fpon good and valid grounds, the following entries in the civil register may be cancelled or corrected< D D D 8o' changes of name.J 5ence, while the Burisdictional reCuirements of Rule 1/% 8which governs petitions for change of name' were not complied with, observance of the provisions of Rule 1/) suffices to effect the correction sought for. 8&epublic vs. Eho, G.R. 2o. 1$/%-/, :une !), !//$' No intent on t%e part of t%e law#a1ers to re#ove t%e aut%orit0 of t%e trial courts to #a1e "udicial corrections of entries in t%e civil registr0

3t can thus be concluded that the local civil registrar has pri#ar09 not e.clusive9 "urisdiction over such petitions for correction of clerical errors and change of first name or nic name, with R.0. 2o. ./-) prescribing the procedure that the petitioner and local civil registrar should follow. Since R.0. 2o. ./-) refers specifically to the administrative summary proceeding before the local civil registrar it would be inappropriate to apply the same procedure to petitions for the correction of entries in the civil registry before the courts. 8 &eA Final &eport on the Judicial Audit Conducted at the &egional (rial Court, #r. :8, -ani1ui, (arlac, 0.1. 2o. /("$"-1-"R4C, Ectober 1., !//$'. C%ange of first na#e is wit%in t%e pri#ar0 "urisdiction of t%e local civil registrar

R0 ./-) now governs the change of first name. 3t vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Fnder the law, therefore, Burisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. 4he intent and effect of the law is to eDclude the change of first name from the coverage of Rules 1/% 8Change of 2ame' and 1/) 8Cancellation or Correction of *ntries in the Civil Registry' of the Rules of Court, until and unless an administrative petition for change of name is first filed and subseCuently denied. 3t li ewise lays down the corresponding venue, form and procedure. 3n sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not Budicial 8 ilverio vs &epublic, G.R. 2o. 1$-()., Ectober !!, !//$' C%ange of se. or gender allowed w%ere person %as bot% #ale and fe#ale se.ual c%aracteristics

4he trial court ordered the correction of entries in the birth certificate of respondent to change her seD or gender, from female to male, on the ground of her medical condition nown as Congenital 0drenal 5yerplasia 8C05', and her name from I:enniferJ to I:eff,J under Rules 1/% and 1/) of the Rules of Court. DDD C05 is one of many conditions that involve interseD anatomy. 4he term IinterseDualityJ applies to human beings who cannot be classified as either male or female. ?e respect respondentHs congenital condition and his mature decision to be a male. 0s for respondentHs change of name under Rule 1/%, this Court has held that a change of name is not a matter of right but of Budicial discretion, to be eDercised in the light of the reasons adduced and the conseCuences that will follow. 4he trial courtHs grant of respondentHs change of name from :ennifer to :eff implies a change of a feminine name to a masculine name. Considering the conseCuence that respondentHs change of name merely recogni6es his preferred gender, we find merit in respondentHs change of name. Such a change will conform with the change of the entry in his birth certificate from female to male 8&epublic vs. Jennifer Cagandahan, G.R. 2o. 1((($(, September 1!, !//)'. A person4s first na#e cannot be c%anged on t%e ground of se. reassign#ent

57

,etitioner sought to have his name in his birth certificate changed from IRommel :acintoJ to I1ely,J and his seD from ImaleJ to Ifemale.J ,etitionerHs basis in praying for the change of his first name was his seD reassignment. 5e intended to ma e his first name compatible with the seD he thought he transformed himself into through surgery. 5owever, a change of name does not alter oneHs legal capacity or civil status. R0 ./-) does not sanction a change of first name on the ground of seD reassignment. Rather than avoiding confusion, changing petitionerHs first name for his declared purpose may only create grave complications in the civil registry and the public interest. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason Bustifying such change. 3n addition, he must show that he will be preBudiced by the use of his true and official name. 3n this case, he failed to show, or even allege, any preBudice that he might suffer as a result of using his true and official name. 8 ilverio vs &epublic, G.R. 2o. 1$-()., Ectober !!, !//$' No law allows t%e c%ange of entr0 in t%e birt% certificate as to se. on t%e ground of se. reassign#ent)

4he acts, events or factual errors contemplated under 0rticle -/$ of the Civil Code include even those that occur after birth. 5owever, no reasonable interpretation of the provision can Bustify the conclusion that it covers the correction on the ground of seD reassignment. 4o correct simply means Ito ma e or set aright# to remove the faults or error fromJ while to change means Ito replace something with something else of the same ind or with something that serves as a substitute.J 4he birth certificate of petitioner contained no error. 0ll entries therein, including those corresponding to his first name and seD, were all correct. 2o correction is necessary. ?hile petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authori6es the change of entry as to seD in the civil registry for that reason. 4hus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate. 8 ilverio vs &epublic, G.R. 2o. 1$-()., Ectober !!, !//$' Registered na#e of illegiti#ate c%ild

0n illegitimate child whose filiation is not recogni6ed by the father bears only a given name and his motherHs surname, and does not have a middle name. 4he name of the unrecogni6ed illegitimate child therefore identifies him as such. 3t is only when the illegitimate child is legitimated by the subseCuent marriage of his parents or ac nowledged by the father in a public document or private handwritten instrument that he bears both his motherHs surname as his middle name and his fatherHs surname as his surname, reflecting his status as a legitimated child or an ac nowledged illegitimate child. 0ccordingly, the registration in the civil registry of the birth of such individuals reCuires that the middle name be indicated in the certificate. 4he registered name of a legitimate, legitimated and recogni6ed illegitimate child thus contains a given or proper name, a middle name, and a surname. 8 In &eA -etition for Change of )a%e andJor CorrectionJCancellation of "ntry in Civil &egistry of Julian Lin Carulasan 5ang, G.R. 2o. 1&..((, 1arch %/, !//&'. Ot%er -urisprudence

(y Eong (in 81.&-'< followed by Chua ?ee vs. Rep., ?ong vs. Rep., Rep. vs. 1edina Rule 1/) should be limited solely to implementation of 0rt. -1!, the substantive law on the matter of correcting errors in the civil register. 0rt. -1! contemplates a summary procedure, involving correction of clerical errors, or a harmless, innocuous nature, not changes involving civil status, nationality or citi6enship, which are substantial andOor controversial &ep. vs. Macli/ing proceedings, although filed under Rule 1/), not summary because published for % consecutive wee s# SolGen notified and filed opposition, etc. &ep. vs. Valencia 81-1 SCR0 -(! @1.)(A' turning point, paradigm shift< Rule 1/) embodies two inds of proceedings<

58

1. procedure summary in nature for correcting clerical or unsubstantial matters to ma e it less tedious and eDpensive !. procedure adversary in nature to govern proceedings involving substantial changes 3f all procedural reCuirements have been followed, petition for cancellation even if filed under Rule 1/) no longer summary. correctionOor

*ven substantial errors may be corrected and true facts established prov. parties aggrieved by the error avail of the appropriate adversary proceeding. 0ppropriate proceeding< a. where all relevant facts have been fully weighed and considered b. where opposing counsel have been given opportunity to demolish the opposing partyHs case c. where evidence has been thoroughly weighed and considered ,rocedure becomes 0+7*RS0R> proceedings when opposition to petition is filed by GCR or any person having or claiming interest in entries sought to be cancelled andO or corrected and opposition is actively prosecuted. Substantial corrections allowed< citi6enship from Chinese to ;ilipino# status from legitimate to illegitimateH status of mother from married to single Valencia ruling 8en banc' reiterated in Chia #en Li% vs. Kosa 8en banc', &ep. vs. #autista and Kapanta vs. LC& of *avao 0ttempts to revert to (y Eong (in H Labayo &o3e vs. &ep. , Leonor vs. CA and &ep. vs. Labrador 5owever, all doubts resolved in Lee vs. CA 8%($ SCR0 11/ @!//1A'< 1. Substantial corrections Rule 1/) !. Clerical or typographical errors 8including change of first name' R0 ./-) 8administrative correction' Recent -urisprudence

I0ppropriate adversary proceedingJ is Ione having opposing parties# contested, as distinguished from an eD parte application, one of which the party see ing relief has given legal warning to the other party, and afforded the latter an opportunity to contest it.J ?hen all the procedural reCuirements under Rule 1/) are thus followed, the appropriate adversary proceeding necessary to effect substantial corrections to the entries of the civil register is satisfied. 2o substantial change or correction in an entry in a civil register can be made without a Budicial order, and, under the law, a change in citi6enship status is a substantial change. 8&epublic vs. Eho, G.R. 2o. 1$/%-/, :une !., !//$' Republic 0ct 2o. ./-) provides in Section ! 8%' that a summary administrative proceeding to correct clerical or typographical errors in a birth certificate cannot apply to a change in nationality. Substantial corrections to the nationality or citi6enship of persons recorded in the civil registry should, therefore, be effected through a petition filed in court under Rule 1/) of the Rules of Court. 8Eilosbayan Foundation vs. "r%ita, G.R. 2o. 1$$$!1, :uly %, !//$' 4he local civil registrar has primary, not eDclusive, Burisdiction over such petitions for correction of clerical errors and change of first name or nic name, with R.0. 2o. ./-) prescribing the procedure that the petitioner and local civil registrar should follow. 8 &eA Final &eport on the Judicial Audit Conducted at the &(C, #&. :8, -ani1ui, (arlac, 0.1. 2o. /("$" -1-"R4C, Ectober 1., !//$' 0 change of name does not alter oneHs legal capacity or civil status. R0 ./-) does not sanction a change of first name on the ground of seD reassignment. Rather than avoiding confusion, changing petitionerHs first name for his declared purpose may only create grave

59

complications in the civil registry and the public interest. 0lso, there is no such special law in the ,hilippines governing seD reassignment and its effects. 3n our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of seD reassignment. 4he need for legislative guidelines becomes particularly important in this case where the claims asserted are statute"based. 8 ilverio vs. &epublic, G.R. 2o. 1$-()., Ectober !!, !//$' ?here the person is biologically or naturally interseD the determining factor in his gender classification would be what the individual, li e respondent, having reached the age of maBority, with good reason thin s of hisOher seD. Respondent here thin s of himself as a male and considering that his body produces high levels of male hormones 8androgen' there is preponderant biological support for considering him as being male. SeDual development in cases of interseD persons ma es the gender classification at birth inconclusive. 3t is at maturity that the gender of such persons, li e respondent, is fiDed. 8&epublic vs. Cagandahan, G.R. 2o. 1((($(, September 1!, !//)'

S. Appeal in Special Proceedin#s

Rule 130 Appeals in special proceeding

". 7ud#ments and orders for w$ic$ appeal ma! be taDen 2. +$en to appeal
Sec. 1. 0ny 324*R*S4*+ ,*RSE2 may appeal from an order or Budgment rendered by the R4C, where such order or Budgment 1. !. %. -. &. 0llows or disallows a ?3GG +etermines who are the lawful heirs of a deceased or the +3S4R3BF437* S50R* of the estate to which he is entitled 0llows or disallows, in whole and any part, any CG031 against the estate, or any CG031 presented in behalf of the estate 32 E;;S*4 to any claim against it Settles the 0CCEF24 of an eDecutor, administrator, trustee or guardian Constitutes, in proceedings relating to the S*44G*1*24 of the estate of the deceased, or the 0+1323S4R043E2 of a trustee or guardian, a ;320G +*4*R132043E2 in the lower court of the rights of the party appealing. *Dception< no appeal from appointment of special administrator. 3s the ;320G ER+*R or :F+G1*24 rendered in the case, and affects the SFBS402430G R3G54S of the person appealing. Fnless it be an order granting or denying a motion for new trial or reconsideration Sec. 1 8a', Rule -1< no appeal may be ta en from an order denying a motion for new trial or reconsideration. 3n certain inds of special proceedings, such as settlement of estate, appeal may be ta en at various stages of the proceedings.

(.

3.

=odes of appeal

Rules -/, -1, -! and -& apply in conformity with Rule $!, Sec. ! 8applicability of rules of civil actions') 3f it is an ordinary appeal under Rules -/ or -1, and the special proceedings are subBect to multiple appeals, li e settlement of estates, the appeal period is %/ days, a notice of appeal and record on appeal being reCuired. 4he rationale behind allowing more than one appeal in the same case is to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final. 3n this multi"appeal mode, the probate court loses Burisdiction only over the subBect matter of the appeal but retains Burisdiction over the special proceeding from which the appeal was ta en for purposes of further remedies the parties may avail of.

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?here multi"appeals are allowed, we see no reason why a separate petition for certiorari cannot be allowed on an interlocutory aspect of the case that is separate and distinct as an issue from the aspect of the case that has been adBudged with finality by the lower court. 8#riones vs. .enson/Cruz, G.R. 2o. 1&.1%/, 0ugust !!, !//)'

4.

)ule on ad'ance distribution

2otwithstanding a pending controversy or appeal in prccedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and Bust, permit that such part of the estate as may be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule ./. Rule ./, Sec. 1 " +istribution before payment of obligations is allowed provided distributees give BE2+ conditioned for payment thereof within such time as court directs.

EN!E O& SPECIAL PROCEEDINGS 1. !. %. Settle#ent of estate 8Rule $%'< R4C 8or 14C' of province where deceased last residedOproperty situated. Esc%eat 8Rule .1'< R4C of province where deceased last residedOproperty situated. Guardians%ip< 8Rule on Guardianship of 1inors @0.1. 2o. /%"/!"/&"SCA' ;amily Court of province or city where minor residesOproperty situated. Rule .! R4C of province or city where incompetent residesOproperty situated. -. Adoption 8Rule on 0doption @0.1. 2o. /!"("/!"SCA'< ;amily Court of province or city where prospective adoptive parents reside. Rescission where adoptee resides. 8abeas Corpus 8Rule 1/!'< 3f filed with R4C, where detainee is detained. SC, C0 and R4C have concurrent Burisdiction. 5owever, the writ of habeas corpus issued by the R4C shall be enforceable only within its Budicial region 8Sec. !1, B, 1!.'. 5abeas Corpus for custody of minors< ;amily courts have eDclusive Burisdiction 8;amily Courts 0ct of 1..$ @R0 )%/.A. 5owever, under the Rule on Custody of 1inors and ?rit of 5abeas Corpus in relation to Custody of 1inors 80.1. 2o. /%"/-"/-"SC', the petition may be filed with SC, C0 or any of its members, and the writ shall be enforceable anywhere in the ,hilippines. () A#paro 80.1. 2o. /$"."1!"SC' SC, C0 and SB R4C of the place where the threat, act or omission was committed or any of its elements occurred $. 8abeas Data 90.1. 2o. /)"1"1("SC' SC, C0 and SB R4C< 1. ?here petitioner resides# or !. ?here respondent resides# or %. ?hich has Burisdiction over the place where data or information is gathered, etc. 0ll at the option of petitioner.

&.

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(. $. ).

C%ange of na#e 8Rule 1/%'< R4C of province of residence of petitioner. Absentees 8Rule 1/$'< R4C of place where absentee resided before his disappearance. Cancellation or correction of entries 8Rule 1/)'< R4C of place where civil registry is located. Correction of clerical or typographical errors 8R0 ./-)'< Gocal Civil Registrar of place where record is located. *Dc. if impractical in terms of transportation eDpenses, time and effort as where petitioner has transferred to another place Gocal Civil Registrar of petitionerHs residence.