In general

Distinguish between an ordinary civil action and a special

proceeding:

Civil action
Enforce/protect right or
prevent/redress wrong
Private interests

Formal pleadings
Single appeal
Notice of appeal (usually one page)
15 days

10. Voluntary dissolution of corporations now with the SEC

11. Judicial approval of voluntary recognition of minor natural
children no more natural children
o 12. Constitution of family home operation of law under FC
o 13. Declaration of absence and death
o 14. Cancellation/correction of entries in civil registry
What other cases are considered special proceedings?
o 1. Liquidation
o 2. Arbitration
o 3. Alternative Dispute Resolution (ADR)
o 4. Corporate rehabilitation
o 5. Writ of Amparo
o 6. Writ of Habeas data
What is the exception to the general rule that declaration of
absence and presumptive death is a special proceeding?
o Declaration of presumptive death for purpose of remarriage
applied FC rules on summary proceedings.
What is the nature of special proceedings?
o Special proceedings are non contentious proceedings.
o
o

PART IV: SPECIAL PROCEEDINGS

Spec pro
Establish right, status, or particular
fact
Theres public interest also binds
the world (generally). So it must be
published.
Motions/application
Multiple appeals
Record of appeal (voluminous)
30 days

Does the prior requirement of earnest efforts to compromise

between relatives apply to settlement of estate?
o No. Earnest efforts to compromise does not apply here,
because that only applies to civil actions. Settlement of estate
is a special proceeding.
Can the court in an ordinary action settle issues relating to special
proceedings?
o No. For instance, the complaint filed in the RTC was an
ordinary civil action for annulment of sale. An ordinary action
cannot settle issues relating to special and limited jurisdiction
of special court (ex. settlement of estate).
Subject matters of special proceedings:
o 1. Settlement of estate
o 2. Escheat
o 3. Guardianship
o 4. Trustees
o 5. Adoption
o 6. Revocation of Adoption
o 7. Hospitalization of insane persons
o 8. Habeas corpus
o 9. Change of name

SETTLEMENT OF ESTATES
Extrajudicial settlement

144

What are the modes of extra-judicially settling estate?

o 1. Extrajudicial settlement through public document filed in
ROD
o 2. Ordinary action for partition (Rule 69)
o 3. Affidavit adjudicating estate to sole heir
A judge reopened settlement proceedings for intervening
illegitimate children. Is this proper?
o Yes, but he should have made them present evidence first to
establish their right, prima facie.
Can there be EJS even if there is an administrator already?
o Yes. The States underlying reason for favoring extrajudicial
settlement cheaper, faster, simpler
o Two requisites:

1. Move for appointment of another administrator

(because it is a new estate already)

2. 2 year period
Requirements for summary settlement?
o 1. Gross value of estate = 10K or less
o 2. Whether the decedent left a will or not, DOES NOT
MATTER
o 3. Hearing from 1-3 months after last publication 3
consecutive weeks in newspaper of GC in province + notice to
interested persons
o Why is it summary?

No administrator or executor
o What must the court do?

Determine if there are creditors

Difference between summary settlement and usual judicial
probate/admin proceedings:
o No more portion where the court appoints an administrator
Requisites for EJS?
o 1. No will
o 2. All heirs of legal age, or minors duly represented
o 3. No debts
What are the procedural matters?
o Record in public document, submitted to ROD
o Publication of fact of EJS (so its post hoc) in newspaper of
GC 3 consecutive weeks in province
o Bond for personal property

Can easily be disposed of

Unlike real property which you can annotate

What if there is an adverse claim?
o In summary settlement of estate (for small estates), whatever
adverse claim can be protected by annotation lis pendens.
This should not bar the distribution of the estate
Procedure?
o Real property:

Public instrument

Registration (notice to the world)

annotate/lien
o Personal property:

File bond
When is the decedent presumed to have left no debts?

145

When no creditor files a petition for letters of administration

within 2 years of the death of the decedent
Is it mandatory for heirs to have an EJ partition?
o No.
o General rule: settlement is judicial. If no will, no debts, all heirs
of legal age EJ. But can still do judicial, if there are good
reasons. But a mere spat is not a good reason.
o The heirs can pray for:

1. Dismissal of judicial case, if theyre happy with the

partition

2. Conversion of the action to an ordinary action for

partition
What if its in a private instrument?
o Still valid.
o Note though, that for lack of registration, it will only bind the
heirs. In a case, the ones that donated the land postsettlement were heirs so they should have been bound to the
EJ settlement.
Does posting of a bond terminate the annotation of adverse
interest?
o No. The two year period has to lapse first.
o Could not substitute annotation with bond. The bond only
applies to personal properties.
What if the heirs could not actually physically divide the property?
o Continued co-ownership could be allowed, by the parties
agreement. No need for spec pro in this case.
X left a will and died. Can the heirs enter into an EJ settlement of
the estate?
o Yes, as long as they submit the will for probate and the terms
of the EJ settlement do not vary the terms of the will. Probate
of a will is compulsory.
What if an heir or creditor is excluded?
o Can go against bond (personal property) or the real property
within 2 years after settlement and distribution of estate by
petitioning for settlement of estate
o What if the person is a minor, incapacitated, is in prison,
or outside the Philippines?

May present claim within 1 year from disappearance

of disability

What are the remedies against EJS when a creditor or heir is

excluded?
o Excluded creditor

1. If personal, go against the bond

2. If real, annotation
o Excluded heir

1. Letters for administration

2. Petition for probate of estate 2 years

3. Rescission/partition 4 years

4. Annulment on ground of fraud 4 years

From discovery of fraud

5. Action reivindicatoria 10 years

Count from registration: when implied trust is

renounced (already claiming ownership)

Judicial settlement

Which court has jurisdiction in probate/admin proceedings?

o JURISDICTION:

MTC

300,000 and below (outside MM)

400,000 and below (MM)

RTC

Above 300,000 (outside MM)

Above 400,000 (MM)

o VENUE

Resident

Where the person resided

Non-resident

Any place where estate is

Differentiate residence from domicile:
o Resides" should be viewed or understood in its popular sense,
meaning, the personal, actual or physical habitation of a
person, actual residence or place of abode. It signifies physical
presence in a place and actual stay thereat.
o Domicile requires bodily presence in that place and also an
intention to make it one's domicile. For residence, no particular
length of time is required though; however, the residence must
be more than temporary.

146

Is venue waivable?
o Yes. As this issue is only a matter of VENUE, it is not
jurisdictional. Implication: it can be waived.
What is the exclusion rule?
o When a probate court has taken cognizance of the proceeding,
it excludes all other courts.
What is the meaning of taking cognizance in the exclusion rule?
o The court has to do something. So not where you first filed,
but the court that first acted.
What is the limited and special jurisdiction of the probate court?
o General rule: probate court cannot pass upon issues of
ownership; can only pass judgment on jurisdiction or probate
of a will
o EXCEPTIONS:

1. For purposes of inclusion in inventory

If all of the parties are heirs and they submit

the issue of ownership to the probate court
and there is no third party prejudiced

Question of collation or advancement

2. All the heirs consent

o What are the implications of this rule?

The court cannot include in the estate property

registered in anothers name

The court cannot include in the inventory property

which belong to a third person
o But the court may:

1. Issue warrants and compulsory processes to carry

into effect orders and judgments

2. All other powers granted by law

What issues can be resolved by the probate court?
o 1. Identity of the will
o 2. Due execution of the will
o 3. Capacity of the testator
Maloles II v. Phillips: In the lifetime of the testator, he filed an
admission for probate. So when the nephew filed a motion to intervene,
the proceedings have already terminated. Thats why when the deemed
executrix filed for letters of administration in another court, that court
said that the first court having jurisdiction over the first probate
proceedings must have jurisdiction.

Alipio: Creditor collecting from CPG for a debt cannot sue the surviving
spouse; must file a claim in the settlement of the estate of the decedent.
Reyes: An adoption decree cannot be subject to collateral attack in a
probate proceeding.
Settlement of estate of a person presumed dead how is the
estate dealt with?
o He is entitled to the balance of his estate after payment of
debts
o Balance may be recovered by mere motion in the same case
where he was declared presumptively dead

Production of will as necessary

Why is probate mandatory?

o Policy of law is to allow a person to freely dispose his property
after death. Respect the wishes of the decedent.
Why is probate necessary?
o A will that is not probated does not pass property.
o To prove due execution of the will
What are the issues of due execution included in probate?
o 1. Compliance with formalities
o 2. Mental capacity
What are the issues excluded from probate?
o Intrinsic aspect of the will (ex. preterition)
What is the implication of allowance of the will in probate?
o Once a will has been probated, no more questions re: validity
of the will may be raised
o An order admitting the will to probate is considered final and
appealable.

So it can be appealed
o Probate and authentication are the same: court really just
rules upon the extrinsic validity of the will.
o What is the rule on extrinsic validity as to probate?

Conclusive as to due execution.

o What about intrinsic validity?

Cannot raise these issues as a general rule.

Exception: when seen on the face of the will, or for

practical purposes.
Does prescription apply in the probate of wills?

No. Prescription does not apply in the probate of wills. It is not

a right but a duty.
o Courts duty is to admit to probate unless one of the grounds to
oppose applies.
Exception to probate?
o Summary settlement of estates less than P10K (even if there
is a will)
Because probate is mandatory, what are the responsibilities of the
custodian of the will or the executor?
o 1. Custodian of the will must within 20 days of learning of death
of testators death, deliver to court or to named executor
o 2. Executor to court

Within 20 days of learning of death

OR if appointed after death, then within 20 days

What happens if they fail to comply with the duties?
o Subjected to fine or detention

Allowance or disallowance of the will

147

Procedure for probate:

o 1. Application
o 2. Court to set hearing date and time
o 3. Publication (if testator is the one who petitioned, no need)
o 4. Notices sent
o 5. Hearing
Who may file the application for petition?
o Executor, legatee, devisee, any person with interest
o Testator himself
Distinguish probate of a will post-mortem and ante-mortem.
o Post-mortem

A. Executor, heir, administrator, or any interested

person can apply

B. Notice given to compulsory heirs

Notice given to all heirs too by publication

o Ante-mortem

A. The testator himself applies

B. Notice given to compulsory heirs

No notice to other heirs by publication

When can it be filed?

o Any time
May the testator himself file?
o Yes.
What are the contents?
o 1. Jurisdictional facts
o 2. Names, addresses, ages of heirs, devisees, legatees
o 3. Probable value and character of property
o 4. Name of person for whom letters are prayed
o 5. If will not delivered to court, the name of the person with
custody thereof
What are the jurisdictional facts?
o 1. The person executed a will
o 2. Died in province of RTC or if non-resident, owned property
there
o 4. Submit will to court
Three ways of consolidating cases?
o 1. Recast and conduct one hearing only and one decision
o 2. Consolidate all cases into one hearing, one decision
o 3. Principal one heard and suspend others
Who must the applicant be?
o Applicant must be executor of the will, or must have custody
over the will
What must be submitted?
o Must submit original of the will; if mere copy, explain why.
A will was submitted for probate. Can the heirs then decide to just
file a separate case for partition of property?
o Cannot file subsequent separate case for partition of property,
because everyone is bound through publication (notice to
whole world) of the probate proceedings
o Contrast this with situation where the heirs first prayed for the
dismissal of the settlement proceedings and converted it to
partition proceedings
What is the nature of the probate proceeding?
o Probate of will is in rem; court acquires jurisdiction over all
interested persons and any order binds the whole world
o Mandamus to undergo publication is not the proper remedy
must appeal in due time and manner
What is the rule on publication?

148

Newspaper of general circulation: published regularly, appeals

to general interest, bona fide subscription list
o Need not wait full three weeks before the day set for hearing
st
(can publish for three consecutive weeks for 15 days 1 day,
th
th
8 day, 15 day)
How do you serve notices?
o 1. To place of residence
o 2. Prepaid
o 3. Through mail (20 days prior to hearing)
o 4. Personally (10 days prior to hearing)
What is the implication of failure to send personal notice?
o If the addresses of the legatees and devisees are known, then
failure to send personal notice is fatal.
o Exception: if there was no notice sent because the address
indicated was wrong.
What if non-compulsory heirs are not given notice?
o In a case, two heirs were not given notice (grandchild and
niece) but since they are not compulsory heirs, this was not
fatal.
What if it is the testator himself that submits the will for probate?
o No need for publication
o Notices only to compulsory heirs
What happens first during hearing?
o First, present jurisdictional facts (death certificate, barangay
certificate, will, publication and notice, etc.):

1. Attach three weeks publication

2. Affidavit of publication
What happens when there is an opponent for a holographic will?
o At least 3 witnesses who know the handwriting and signature
of the testator must attest.
o May resort to expert witnesses
If notarial will?
o All the subscribing witnesses and the notary must attest
o If some are not there, explain
o Cabang: If probate of will is opposed, all subscribing witnesses
of a notarial will must be presented. Here, just 1 invalid.
o What are exceptions to the rule that for opposed wills, one
must present all the subscribing witnesses?

o
o

Avera: if the issue was raised for the first time on

appeal
What if all the witnesses are outside the province of RTC?
o Take one witnesss deposition
What if the witnesses are dead?
o May admit other witnesses to prove due execution of will.
(Prove handwriting, etc.)
What are the recourses of excluded heirs against a decree of
probate?
o 1. Relief from judgment

(60 days from knowledge + 6 months from decree)

o 2. Certiorari (Rule 65)
o 3. Independent civil action (NCC, Art. 1114), assuming
decision is obtained through fraud
What if the alterations on a holographic will were not dated and
signed?
o This non compliance with Arts 813 and 814 does not affect
extrinsic validity of the holographic will (which only requires
that it be written, dated, and signed)
What if the original proponent of the will died?
o Substitute proponents amended petition already deemed to
have fulfilled publication and notice.
If the will is lost or destroyed, how can it be proved?
o 1. Establish its existence
o 2. It was fraudulently or accidentally lost/destroyed
o 3. Two credible witnesses prove its contents
What are the rules for probate before foreign courts?
o The fact that a foreign court is a probate court must be proved,
in the absence of which, procedure assumed to be the same
as here in the Philippines
o Proof of foreign laws must be submitted

Letters testamentary and of administration

Allowance of will proved outside the Philippines and Administration of estate

thereunder

2. Set hearing
3. Give notice as in the case of the original will presented for
allowance
o 4. ALSO publication, not just notice (jurisprudence)
Difference between principal and ancillary administration?
o Ancillary administration is administration of the decedents
estate other than the one in which she lived, to dispose the
property she owns there. This is subordinate to, and in aid of,
principal administration.
o Duty of ancillary administrator is to present evidence to support
To which properties does administration extend for these cases?
o Administration only extends to property within State or country
where letter was granted
o No power beyond that.
What does the court issue thereafter?
o Certificate of allowance

What is the proceeding for a will allowed outside the country?

o 1. Upon due authentication of

Will

AND order or decree of allowance

149

When are letters testamentary issued?

o 1. Will has been proved
o 2. Person is competent
o 3. Accept trust
o 4. Give bond
When is an administrator appointed?
o 1. When no executor in named or
o 2. The executor is disqualified, he refuses the trust, or fails to
give a bond or
o 3. A person dies intestate
o What is the procedure for the issuance of letters of
administration?

1. File petition

2. Court sets hearing

3. Issue order granting letters

o What are the jurisdictional facts?

1. Death

2. Place of death (residence)

3. Nonresident
To whom is the letter of administration granted?

1. Surviving spouse, next of kin, or both, or person appointed

by the SS or next of kin
o 2. One or more of the principal creditors

If the ones in #1 are incompetent or unwilling

Or if they neglect to apply for administration within 30

days of death of decedent

What is the nature of this 30 day disqualification?

The 30-day rule disqualifying SS and next of

kin must only apply when there is good
reason to exclude them. (Gabriel)

But some cases applied the 30 day rule

strictly
o 3. Any other person the court selects
o Must this order be followed?

Yes.
o Who has discretion to appoint an administrator?

The Court has discretion to appoint administrator.

Must show proof of filiation.
o Can the court pass upon issue of filiation?

Yes, the court can pass upon filiation issue in

determining order of interested person as
administrators
Who may not serve as administrators?
o 1. Minor
o 2. Non-resident
o 3. Unfit to perform (DILM)

Drunkenness

Improvidence

Lack of understanding or integrity

Moral turpitude conviction

o What if there is a claim of incapacity?

Hold a hearing if there is claim of incapacity or

disqualification
What are the grounds to appoint a co-administrator?
o 1. To represent different interests
o 2. Justice and equity demands opposing factions to be
represented
o 3. large or perplexing estate
o 4. To satisfy all persons

5. When person appointed entitled to have another competent

person assist him
Up until when does the court have the power to appoint an
administrator or a co-administrator?
o Probate court may re-open the administration issue as long as
it retains J over spec pro.
o Ex. Appoint co-admin which knew details of estate.
What if the administrator has some conflict of interest with part of
the properties being administered?
o Exclude the property in which the administrator had conflicting
interests as appellant and appellee
o Do not remove him as administrator, but just exclude him from
the property in question

Opposing issuance of Letters

150

Can petitions for administration be opposed?

o Yes.
o On what grounds?

1. Incompetency of the person prayed for

2. Contestants own right to be administrator

o To whom?

To contestant or another person prayed for

Sec 1 of Rule 79 what does A petition may at the same time be
filed for LOA with the will annexed?
o When there is no executor or the one appointed is
incapacitated. Or when you are questioning the will.
Who are the ones who can file an opposition to the issuance of
letters?
o Interested persons. Interest must be direct, not just indirect or
contingent
What if there is an heir who assigns his share during the pendency
of the proceeding?
o If assignment of share occurs in the pendency of the case, still
entitled to notice because the court retains jurisdiction over the
person and that person is still interested. The court must
approve assignment.
What if the assignment occurs before settlement of estate?

If assignment of share occurs before settlement of estate, no

interest anymore.
Is the fact that an administrator lacks capacity a jurisdictional
issue?
o No. If the administrator is not an interested party, the motion to
dismiss filed by the opponent must not be based on lack of J
by the court, but lack of legal capacity of the administration.
o Administrators capacity is not jurisdictional fact.

Bonds of executors and administrators

Special Administrators

appeal, but not the spec pro. So it may continue to make

decisions re: appointment of administrators.
Does the order of preference apply to SAs?
o No. Order of preference does not apply in appointment of SA.

When do you appoint a special administrator?

o 1. When there is a delay in granting letters testamentary or of
administration by any cause (including appeal from allowance
or disallowance of the will)
o 2. If the executor or administrator himself has a claim against
the estate (but the SA is only for that limited purpose for the
claim)
What can an SA do?
o 1. Preserve property, rights, credits for future E/A
o 2. Maintain and commence suits as SA
o 3. Sell only perishable property and those ordered sold
o N.B. not liable to pay debts of the deceased
Can there be two SAs?
o Yes. There can be two special administrators to represent
interests fairly and equitably.
Can the court allow the SA to dispose of other property, and not
just perishables?
o Yes, but must liquidate first and prove ownership.
De Guzman:
o Delay caused on probate due to analysis of validity of a prior
deed of donation covering the estate property is any cause
contemplated in provision re: delay and appointment of SA.
o The partisan possession by respondents cannot replace the
neutral possession of SA.
After appeal, may the court still appoint administrators?
o Yes.
o Nature of appeal in spec pro is record of appeal, so after the
appeal, the court only loses jurisdiction over the subject of

Can the probate court execute bonds too?

o Yes. Given that the probate court has the jurisdiction and
power to require bonds, then execution of bond is also within
jurisdiction of court.
What are the two most important conditions in the bond?
o 1. Inventory within 3 months
o 2. Accounting within 1 year

Revocation of administration, death, resignation, removal

151

Generally, when may the court remove executor OR administrator?

o 1. Neglects to render account and settle estate according to
law
o 2. Failure to perform order or judgment of court or duty under
ROC
o 3. Absconding
o 4. Becomes insane or incapable to discharge the trust
When is another ground where the court may revoke letters of
administration?
o If a will has been proved and allowed by the probate court
Who has discretion to remove the administrator?
o Removal of administrator lies within discretion of court
appointing him. BUT give that administrator his day in court
prior to removal.
o General rule: never interfere with discretion of the court.
What if the administrator fails to render accounting?
o Rendering of accounting after 1 year is mandatory; negligence
is a ground for removal from appointment
What is required to remove an administrator or executor?
o Sufficient evidence of failure to pay real estate tax and to
render proper accounting.

What should be included in the inventory?

o All real and personal properties in estate
o In possession OR within knowledge
What are not included?
o Provisions to be consumed or for familys subsistence
When is the administrator supposed to submit the inventory?
o Within 3 months after appointment
o 3 month period to submit inventory is not a mandatory period
(Sebial)
If the administrator fails to submit the inventory within 3 month
period, and the interested parties file a motion to remove him as
administrator, can the administrator invoke the Sebial case?
o No, he can still be removed. The Sebial doctrine is only with
re: the court being able to approve inventory filed beyond 3
month period. (THUS, Sebial is a jurisdictional issue.)
Is the inventory conclusive on the issue of ownership?
o Inventory is merely provisional and is not determinative of the
issue of ownership. Separate action necessary to determine
issue of ownership and recover of possession.
Who gets provisional support?
o 1. Widow, 2. Children (minor or incapacitated)
o That children are all of age, gainfully employed, or married
does not affect whether they should receive right to allowance
under Art. 188. The Civil Code makes no distinction; the ROC
cannot limit it. The wife that would get support is the
legitimate spouse.
o Grandchildren not entitled to provisional support from the funds
of the decedents estate. The law limits allowance to widow
and children, and does not extend it to the grandchildren.

Accountability and compensation of executors and administrators

General powers and duties of executors and administrators

Failure to comply with order of a court what is the

consequence?

Partner can be held in contempt

What is the power of the executor or administrator of the estate of
a deceased partner?
o Can access records, books, and papers of the partnership and
demand the production of such from the other partners
Is court approval needed to lease property of estate?
o No. Court approval not required prior to an administrator
leasing a property in the estate, because this is not an act of
ownership.
What is the prohibition as regards this lease?
o The administrator cannot lease the property for himself, directly
or indirectly (ex. acting as agent for the partnership leasing the
property)
What is the remedy to annul a contract?
o Separate action to annul.
What is the extent of the rights of the A/E over the property?
o Exercise of rights of A/E over property is for payment of debt or
for administration expenses. It is not absolute.
o

Inventory and appraisal

Can an executor/administrator have access over partnership

books?
o Yes. It only extends to a partnership but not a corporation,
because there is succession in corporation.

152

What is the rule on increase or loss of value?

o The E/A cannot profit on sale for amount greater than value
must account profits to the estate
o The E/A is not liable for losses without his fault
Until when does the duty to account apply?
o Until the final order for closure and termination of
administration. It lasts until the estate is wholly settled.
o Even after final accounting, as long as there is administration.
What if the executor or administrator resigns?
o The duty applies notwithstanding the existence of compromise
agreement confirming his resignation as co-executor.
o Duty cannot be waived or disregarded.
What if the administrator uses the property of the decedent (ex.
occupying it)?
o He must account for it as may be agreed upon between him
and the interested parties (akin to rentals)

When does the administrator have to render account?

o Within one year from receipt of Letters.
o Punongbayan: Exceptional circumstance

In this case, the co-administrator cannot be compelled

to account because he had only been coadministrator for one day when it was filed. But the
denial of the motion to render account does not
preclude the co-administrator from rendering account,
but within 1 year from receipt of letters of
administration.
What is the rule for attorneys fees?
o Rule with respect to claiming fees: if lawyer and administrator
at the same time cannot claim from estate, but from the
executor/administrator.
o If you are an administrator and engaged services from a
lawyer, then you can claim from the estate as expenses that
benefited the estate.
What if the executor or administrator refuses to pay the attorneys
fees, what are the modes of recourse of the lawyer?
o 1. File an action against admin but in his personal capacity and
not as admin.
o 2. File petition in the testate/intestate proceedings asking court
to direct payment of fees as an expense of administration.

In this option, essential to give notice to all heirs and

interested parties.
May the law firm of the lawyer-admin claim attorneys fees?
o Appointment of individual lawyer from a firm is separate from
that of his law firm separate persons. The Law Office cannot
claim attorneys fees when it was not appointed coadministrator. Instead, claim from the heirs that it helped, as
legal fees (but not as admin.)
What is the nature of compensation?
o Compensation is in the nature of commissions, and not
attorneys fees.
o A greater sum than that provided in the rule is allowed in
special cases where the estate is large, and the settlement
was difficult, and required high degree of capacity (extent of
care) on the part of the E/A. SounJETBT1 0 0 3(d)3(w)15(y)7(e)-3(r a)-5(n)-3(d)-3( a)-5p3 9 Tf1 w 1 170.1 242.66 88.344 Tm[<00B1>] TJ1 0 0 1 120Tm[n4-6( t)9366 3

153

What is the period for filing claims?

Court sets a period not less than 6 months from first

notice but not more than 12 months

If there is a creditor who fails to claim, with just

reason, the court may grant at most a 1 month
extension; but this must be before order of distribution
What claims are covered?
o 1. Money claims (Rule 85, Sec 5)

Arising from contract, express or implied

Whether due, not due, contingent

o 2. Claims for funeral expenses and expenses in last sickness
o 3. Judgment for money
Procedure:
o 1. Filing of claims
o 2. Answer (15 days)

1. Admit

2. Oppose
o 3. Goes to trial
What is the statute of non-claims?
o Time period when a person may file claims against the estate
o After which, barred forever.
o Exception:

Counter claims against the estate

How do you file a claim?
o Present to clerk of court
o Together with:

Contract

Vouchers

Affidavit explaining particulars

What if solidary?
o Can file complete amount against the estate.
What if joint?
o Only the share.
What if there is a debt subject to a mortgage what are the
options?
o 1. Waive the mortgage and just completely claim from the
estate
o 2. Judicially foreclose the mortgage

You can recover the balance

3. Extra-judicially foreclose the mortgage

You cannot recover the deficit/balance

What is the nature of a lease contract?
o A lease contract is transmissible. So when the wife took over
the business of her dead husband, renting certain property,
then there was transfer of interest to her. When she failed to
pay the rents, no need to go after deceaseds husbands
estate; can go after wife.
What if the will provided that the heirs should pay the money debts
of the estate?
o Even if the will stated that the heirs should religiously pay the
debt, the creditors must still file claims within the settlement
proceedings. There is no getting around Rule 86.
X was the administrator of an estate. X hired Atty. Y. X died. Does
the claim of Atty. Y for fees survive notwithstanding Xs death?
o Yes. The claim of the attorney survives because it is against
estate, not the administrator.
o A claim against a person, in her capacity as administrator, can
be filed at the court where a special proceeding for settlement
of the estate is pending.
What if the decedent is one of many solidarily liable persons?
o Creditor can sue the living surety alone. This is allowed; death
of one creditor does not extinguish the suretys liability.
What is the rule on lease rentals being assessed after the death of
the person? i.e. There were unpaid rentals accrued from April
1993 to December 1998, but the decedent passed away in 1989. Do
these claims pass to the estate?
o No, because the rentals accrued after his death.
o The general rule is that heirs are bound by the contracts
entered into by the predecessor-in-interest.
o Except if non-transmissible by:

1. Nature

2. Stipulation

3. Provision of law

Actions by and against executors and administrators

154

What are the claims filed against the executor or administrator by

name?

o 1. Recovery of real/personal property

o 2. Claim for damages caused by the deceased
o 3. All other actions/claims that survive
What is the right of the E/A to bring or defend actions?
o 1. Recovery or protection of property or rights of the deceased

As long as the action survives

o 2. May foreclose mortgages
When are heirs barred from suing?
o When an E/A assumes the trust, heirs cannot file actions to
recover title or possession of property, or for damages until
there is an order by the court assigning the properties to such
heirs or the time for payment of debts has expired
o What if there is no E/A appointed yet?

Heirs can sue even no administrator has been

appointed yet. (Here, cancellation of extrajudicial
settlement by other heirs)
What are the inequitable situations remedied under Sec. 6 that may
be filed by the E/A, heir, creditor, or any individual with interest?
o 1. Property of deceased was concealed, embezzled, conveyed
away by another person
o 2. Person knows deed, bond, contract, conveyance, etc which
contains evidence or discloses the right, title, interest, or claim
of the deceased to real or personal estate
o 3. Person has deceaseds last will and testament:
o What may the court do in these situations?

1. Examine the person on oath on such complaint

2. May use interrogatories

In writing and filed with clerks office

3. Punish for contempt

4. Commit to prison
An heir and an administrator are in conflict as to whether a certain
property must be included in the estate. What may the court do?
o It may pass upon the issue for inventory purposes.
o BUT if there is third person who asserts right to property
contrary to decedents, court has no authority to resolve the
issue. Separate action instituted to recover the property.
Obando:
o Co-administrator was removed for presenting forged will.
Removal was still on appeal.

Other guy became the sole administrator. Co-admin sued to

nullify sale he made.
o Dismissed for lacking legal standing, but without prejudice. If
his case gets reversed, and his appointment restored, then
case may be re-filed without being barred by res judicata.
Villegas:
o The civil liability that completely arose from criminal liability
was extinguished upon death. Cannot file claim against estate.
o Remember which claims survive and which dont (culpa
criminal doesnt, for instance, but culpa contractual does)
What if there is embezzlement before the letters are issued?
o The fraudulent person is liable for double the value of the
property sold, embezzled, alienated, etc., for the benefit of the
estate
o The E/A files the action
Who may file an action to recover property transferred in fraud of
creditors?
o The E/A, with the prompting of the creditors (who pay for
expenses or give security)
o If the E/A refuses to do it, the creditors can do it, if they:

1. Pay expenses of the suit

2. Give bond

When is the bond not necessary?

o When the property was fraudulently
conveyed in favor of the E/A
o What is the effect?

The creditors obtain a lien over the properties

recovered

Payment of debts of the estate

155

The estate sometimes has debts. In this case, how must they be
paid?
o First, from the personal estate.
o Second, from real property not disposed of by will.
o Third, retention to meet contingent claims

Kept for within 2 years after the expiration of period of

claims by creditors

After 2 years, distribute property to heirs. But the

creditor, if the action ripens, may still go against the
heirs (not the estate anymore)
What is the time to pay the debts?
o Not exceeding one year in the first instance
Can it be extended?
o Yes, for not more than six months
What if the estate is insolvent?
o Follow concurrence and preference of credits
When the estate of partner has become insolvent, how must claims
against his separate property be prioritized?
o 1. Those owing to separate creditors
o 2. Those owing to partnership creditors
o 3. Those owing to partners by way of contribution

Sales, mortgages, other encumbrances

Can the court authorize sale/mortgage/encumbrance of real

property?
o Yes.
o When?

1. Personal estate is not sufficient to pay the debts.

2. Sale of personal property may injure business or

estate

and the testator did not make provision for payment

of the debt (for both)
How can an interested person stop the court order granting
authority to sell?
o Issue a bond to cover for claims of the creditors
When can there be sale of real or personal property upon
application of the E/A, even when it is not for the payment of debts,
legacies, or expenses?
o 1. When it is shown that it would be beneficial to the heirs,
devisees, legatees, and other interested persons
o 2. To pay debts or legacies in another country where it shown
that the estate in the other country is not sufficient in a
probate proceeding in another country
What is the procedure involved?

1. E/A files petition to court setting forth debts due, legacies, or

expenses, character of property, plus facts showing sale is
beneficial
o 2. Court fixes time and place for hearing

With notice to interested persons

Optional: publication or otherwise

o 3. Court may require E/A to give additional bond conditioned
on accounting of proceeds of sale
o 4. Court authorizes sale, mortgage, or encumbrance either
private or public
o 5. Record in ROP
Court, upon claim, may authorize conveyance of property to:
o 1. A person who contracted with deceased
o 2. Beneficiary where the deceased was a trustee
Sale of real property must it be with consent of court?
o Any disposition of estate property by an administration or
prospective heir pending final adjudication needs court
approval
o Unauthorized disposition can be annulled by the probate court
without need for separate action
o Can the intestate/probate court execute its order annulling
the sale?

It can. No need for separate court.

Distribution and partition

156

When is there distribution?

o No distribution shall be allowed until payment of debt, funeral
expenses, giving of allowance to widow, admin expenses,
estate tax, etc.
Pay debts and expenses of administration
Court doesnt motu propio order distribution
o Heirs/person requesting for distribution may file a bond
Palicte
o Heir can redeem properties that were sold to cover debts of the
decedent.
o But she cannot register them in her name yet, because this
would be tantamount to distribution.
Who will pay expenses of administration?

o
o
Reyes
o

o
o
o

E/A from the leftover of the property

OR heirs/distributees, from their shares

Barretto by will, left fishpond to wife Maria and who he thought

was his daughter, Salud. They executed project of partition,
which divided the fishpond between them. Therefore, when
Maria died, the probate court made a judgment that Salud was
not a legitimate daughter. Now, project of partition is
challenged; claim is that it is an illegal compromise on her civil
status. Held: Valid. Not a compromise, because there was no
litigation to be prevented. The distribution was also based on
will, and not the partition per se. And the will prevails here.
o When the court approved the project of partition, can it still be
contested?

No.

Normally, can be challenged before the order of

distribution
Crucillo v. IAC
o Oral partition amongst heirs is valid.

But just see the rules on w/n it binds third parties

o Proof: heirs exercised ownership over their shares
De Leon
o Question is over inclusion of certain properties decedent
purportedly gave to his children inter vivos in inventory. RTC
issued an order stating those in the Motion for Collation are
subject to inclusion. Order was challenged, by Petitioners
stating that these properties were already titled in their name
and could not collaterally be attacked. CA: cannot challenge
Order for Collation because it has become final. HELD: CA
erred. The order is merely for inclusion in inventory which is
provisional. It is interlocutory. To talk about collation is
premature since there was no indication that debts have been
paid and the estate is ready for distribution.

Escheat

Who can institute actions for escheats?

o The Sol-gen on behalf of the Republic.
Where does the solicitor general file the action?

157

In court of province of last residence

Or if outside Phils., where he has property
What court?

The provision says CFI, so now its the RTC

When will the hearing be held?
o Hearing scheduled not more than 6 months from petition
What is the publication notice?
o Publish 6 consecutive weeks
What is proved in the hearing?
o Prove that there is no heir
Where does the property go?
o Personal property to municipality or city where he last
resided
o Real property municipality or city where it is located
o What if the deceased never resided in the Philippines?

Whole estate assigned to municipality or city where it

is located
o Purpose of escheated estate:

1. Public school in city/municipality

2. Charitable institutions and centers in

city/municipality
What is the other option?
o Can establish permanent trust
If you are an heir up until when can you still recover an escheated
property?
o Five years from the date of such judgment
o Can a donee (but not an heir) recover the property?

Yes, he is an interested party, because he claims a

right to the escheated property. He may appear or
oppose petition for escheat.
What is the effect of a judgment in escheat?
o Conclusive against all persons with actual or constructive
notice
Tan:
o Solicitor General is now the one that files the complaint but
then, allow City (old Rules)
o 39 years of absence without hearing of that person: enough
can presume death

Guardianship

Where do you institute petition for guardianship?

o Where the minor or incompetent is found
o Ex. Judge from La Union cannot take cognizance of case over
incompetent living in Pampanga
In what particular court, if the person is a minor (over person or
property)?
o Family courts
For incompetent (not a minor) as regards property:
o Follow 300K/400K usual rule
o This shows if MTC or RTC
If over person of incompetent (not a minor) regardless of amount
of property:
o Always RTC
Who can petition?
o Relative, friend, other person, or DSWD
o Can the minor himself do so?

Yes, as long as he is at least 14 years old

What are the grounds?
o 1. Death, continued absence, incapacity of parents
o 2. suspension, termination, deprivation of parental authority
o 3. remarriage of surviving parent, if latter is unsuitable to
exercise parental authority
o 4. best interest of minor
Must a parent still apply for guardianship?
o If the property of the child exceeds P50K you need to petition
for guardianship over the property
When can the guardian sell or encumber the property of the ward?
o 1. The property of the estate is insufficient to maintain the ward
and his family
o 2. For education of the ward
o 3. For the benefit of the ward

Need not explicitly state that the alienation is for the

benefit of the ward, but one can show it by implication
by establishing that it is for the wards benefit
o How long does the order of sales effectivity last?

1 year from the order

o What else can the proceeds of the sale be approved for?

158

Investment of the same

Who is preferred to become the guardian?
o The natural parent of the ward

Parent is preferred over other guardians unless there

is good reason shown. Mere allegation of moral
unfitness is not valid per se
o In default

1. Surviving GP; if several, court chooses

2. Older brother or sister over 21 unless unfit/DQ

3. Actual custodian over 21 unless unfit/DQ

4. Any other person, in courts sound discretion

Procedure:
o 1. Petition
o 2. Time and place of hearing set
o 3. Give notice to all interested persons
o 4. Hearing conducted
o Is publication needed?

No. This is not an affair that the public should be

apprised of.
What happens before hearing?
o Social worker does case study on child
Who are incompetents?
o 1. Suffering from civil interdiction
o 2. Hospitalized lepers
o 3. Prodigals
o 4. Illiterate deaf and dumb

Ex. Grade 3, mind of 6 year old, illiterate shows

incompetence
o 5. Unsound mind
o 6. Those who cannot without outside care take care of their
property
To what situation can a spouse apply for guardianship over
property of the other spouse?
o Family Code article where the spouse automatically assumes
administration over his/her spouses property only applies to
absent, separated-in-fact, abandoned spouse
o DOES NOT apply to incapacitated spouses (here, stroke)
What is the extent of guardianship powers?
o Power of guardianship does not include alienation

o But heirs receipt of proceeds is deemed a ratification

Can the guardianship court pass upon issues of ownership?
o No. The guardianship court cannot pass upon issues of
ownership. It is the duty of the guardian to bring the proper
action.
What are the conditions of the bond of the guardian?
o 1. Inventory within 3 months of appointment or discovery of
property
o 2. Faithfully execute duties of trust for wards best interest
o 3. Render account: a) upon order of the court or when required
by the rules, and b) upon termination of guardianship

Contrast with settlement of estate: in settlement,

account is every one year
o 4. Perform all orders of the court
What are the duties of the guardian?
o 1. Settle accounts of the ward
o 2. Demand, sue for, and receive all debts due

May compound or discharge, on receiving fair and

just dividend of the estate and effects
o 3. Appear and represent the ward in actions and special
proceedings
Can the guardian join in partition proceedings of property held by
the ward as a joint or co-owner?
o Yes, but after hearing only, with notice to the relatives of the
ward and upon establishing necessity and propriety of the
action.
When is the guardianship required to render an inventory to court?
o 1. 3 months from appointment
o 2. 3 months from discovery of property not included in the
original inventory
o 3. Inventory and account from application of an interested
person
Grounds to terminate guardianship?
o 1. Became insane or otherwise incapable of discharging his
trust
o 2. Wasted or mismanaged the estate
o 3. Failed to render account or return for 30 days
o 4. Resigned from position

Trustees

159

Who is a trustee?
o Can be made to carry in effect the provisions of a will or a
written instrument
o Appointed/confirmed in the probate court (if carrying out a will)
or the RTC where the property is located (for written
instrument)
When can the court appoint a new trustee under a will or under a
written instrument?
o 1. When the testator in aw ill omitted to appoint a trustee in the
Philippines, and such appointment is necessary to carry into
effect the wills provisions
o 2. When a trustee under a written instrument declines, resigns,
dies, or is removed before the object of the trust is
accomplished
o What is the power of the new trustee?

Same as the powers of the original trustee

What if a trustee for property in the Philippines is appointed by an
instrument abroad?
o Must apply for appointment as trustee before the local courts,
or else, the trust can be declared vacant
What are the conditions of the bond?
o 1. Make an inventory of all real and personal property
belonging to him as trustee
o 2. Faithfully discharge trust according to law, will, or instrument
o 3. Render account at least once a year, and upon court order
o 4. Upon expiration of trust, settle accounts in court and deliver
property
What are the requisites for the removal and resignation of the
trustee?
o 1. Petition by party beneficially interested in the trust
o 2. Notice to the trustee
o 3. Hearing
What are the grounds for removal and resignation of the trustee?
o 1. Essential to interest of petitioners
o 2. Became insane
o 3. Incapable of discharging the trust or is unsuitable therefore
o 4. Resignation

May the trustee sell the property?

o Yes, but only upon court approval and after proving that it will
best effect the objects of the trust

Adoption

Distinguish qualifications of a domestic adopter, from an alien

adopter under RA 8552, from an alien adopter under ICAA:
o Common qualifications of the adopter

[Capacity]

1. Legal age

2. Full civil capacity and legal rights

3. At least 16 years older than the adoptee, except:

Adopter is biological parent

Adopter is spouse of adoptees parent

[Personal characteristics]

4. GMC and not convicted of crime involving moral

turpitude

5. Emotionally and psychologically capable of taking

care of child

6. In a position to provide care/support

o Qualifications of an alien adopter

Same as common qualifications, plus:

1. Country has diplomatic relations with the

Philippines

2. Must be living at least 3 years in the Philippines

before adoption application and maintains residence
until the adoption decree is entered.

EXCEPT:

1. Former Filipino seeking to adopt relative

th
within 4 degree of consanguinity

2. Married to Filipino spouse and seeking to

th
adopt the latters relative within 4 degree of
consangunity

3. Married to Filipino spouse and seeking to

adopt the latters legitimate son/daughter

3. Certified by diplomatic or consular office that he

has legal capacity to adopt under his laws

160

4. At least 27 years old and 16 years older than

adoptee, except:

Adopter is biological parent

Adopter is spouse of adoptees parent

o Qualifications for adopter under inter-country adoption act:

Same as common qualifications, plus:

1. Country has diplomatic relations with the

Philippines

2. At least 27 years old and 16 years older than

adoptee, except:

Adopter is biological parent

Adopter is spouse of adoptees parent

3. If married, the spouse must jointly file for adoption

4. Has capacity to act under national laws and

undergone counseling in the Philippines

5. Agrees to uphold UNCRC, Philippine Law, and

R&R of Inter-country adoption act
Where to file application for adoption?
o Domestic: RTC where adopter resides
o Inter-country: RTC where adoptee resides
Who must adopt?
o Husband and wife, jointly
o What are the exceptions?

1. Spouse adopting LC of the other

2. Spouse adopting own child

Other spouse must consent

3. Spouses legally separated

What are the legal effects of adoption?
o 1. All legal ties between the biological parents and the adoptee
are severed

Except when it is the biological parent that is the

adopter
o 2. The adoptee becomes the LC of the adopter
o 3. Adopter and adoptee obtain reciprocal successional rights
(just them)
When can adoption be rescinded?
o 1. Repeated physical or verbal abuse by adopter
o 2. Attempt on life of adoptee

o 3. Sexual assault or violence

o 4. Abandonment/failure to comply with obligations
Who may rescind the adoption?
o Just the adoptee. The adopter can never rescind the adoption.
What is the effect of rescission?
o 1. It restores the parental authority of the biological parents, if
the adoptee is still a minor or incapacitated
o 2. The amended birth certificate is cancelled
o 3. Rights to succession are restored, but not as far as there are
already vested rights
When is inter-country adoption allowed?
o Only as a last resort, and when it is in the best interest of the
child.

Habeas corpus, Writ of Amparo

Case study: There was a child who was left outside of the house of a
childless couple and having noticed that no one is claiming the child,
the couple adopted the child. But they secured a birth certificate and
filled in the childs details (simulation of birth), without applying for
legal adoption. The child grew up and when she applied for a visa to
the US, she was denied because she was found to not be the natural
child of the mother (who is sterile). What are implications and what
actions must be taken to correct the situation?

1. Petition for correction/cancellation of entries, because the birth

certificate is false
o Where do you file it?

The place where the entry was made or recorded

o Who are the parties; who are impleaded?

Only the civil registrar (under the ROC)

Under jurisprudence, include the child as well and the

declared parent of the child, and those whose
hereditary rights are affected (ex. Grandparents)
2. Get certification that the child was neglected or abandoned
o Do you need a judicial declaration that the child was
neglected or abandoned?
o NO. You just need a certificate from DSWD from an
administrative proceeding. (Take note of this; new law and
never asked in the Bar.)
3. Legal adoption

161

When can you file a Petition for Habeas Corpus?

o There must be 1. ARREST and 2. DETENTION
o What if it is mere disappearance?

H.C. does not apply

File a criminal case

What must be the nature of the arrest/detention?
o It must be unlawful or illegal. It cannot be pursuant to a valid
arrest/detention.
Detention in violation of the right to speedy disposition of cases,
and the petition for such is denied by the court, what can you do?
o File petition for Writ of H.C.
What is post-conviction petition for HC?
o Under rules on DNA evidence, even after conviction, if the
testing shows that there is no basis for the
conviction/detention, you can file petition for HC
Where can WHC be filed?
o RTC, CA, or SC
What is WHC on custody of minors?
o Not a regular WHC. Unlike in ordinary WHC where there is no
pre-trial, there is pre-trial here.
o See example below.
o X married Y, but were separated in fact. X requested Y for
some time with their child Z. Y allowed, but X never
returned Z. What is the remedy?

Habeas corpus on custody of minors.

What is the difference between preliminary citation and a
peremptory writ of HC?
o Preliminary citation:

requires respondent to appear and show cause why

the peremptory writ should not be granted
o Peremptory writ:

unconditionally commands the respondent to have the

body of the detainee produced before the court
When is a WHC disallowed or discharged?
o 1. Person is lawfully detained or convicted

2. Jurisdiction appears after the writ is allowed; cannot use

defect in the process, judgment, or order as reason to
discharge the writ
What is the Writ of Amparo?
o Also instituted in the RTC, CA, SC
o Can be filed at any time of day or night
o Does not just extend to actual or committed acts, but also to
threatened acts
o Who can file it?

Not just the victim or family members

Extends to religious institutions or NGOs

What is the Writ of Habeas Data?
o Also instituted in RTC, CA, SC
Contents of petition for HC?
o 1. Person imprisoned on whose behalf petition is filed
o 2. Officer or person under whom he is restrained or
imprisoned; if unknown, officers assumed appellation; person
upon whom writ is served is deemed the person intended
o 3. Place where he is detained if known
o 4. Copy of commitment or cause of detention of the person if it
can be produced without impairment of efficiency of the
remedy; if without legal authority state it
Return of WHC:
o 1. Whether or not he has the party in his custody or power, or
under restraint
o 2. If he does, the authority and cause thereof with a copy of
the writ, order, or process
o 3. If the person cannot be produced, the nature or gravity of
sickness or infirmity which is the reason why he cannot be
produced in court without danger
o 4. If transferred to another person: to whom, for what cause,
when, and under what authority
Contents of petition for amparo?
o 1. Personal circumstances of petitioner
o 2. Name and personal circumstances of respondent, or
description/assumed appellation
o 3. Right to life, liberty, security threatened by respondent
(affidavit detailing how)
o 4. Investigation conducted, and identity of investigator

5. Actions and resources taken by petitioner to determine fate

of aggrieved, and identity of respondent
o 6. Relief prayed for
Return of WOA, within 72 hours:
o 1. Lawful defenses to show no violation
o 2. Steps or actions taken by the respondent to determine fate
of aggrieved party and persons responsible
o 3. All relevant information in respondents possession
o 4. If public official or employee, the actions taken to:

a) verify identity of aggrieved party

b) recover and preserve evidence

c) identify witnesses

d) determine cause, manner, location, time of death

or disappearance

e) indentify and apprehend the person or persons

involved

f) bring suspected offenders to court

o Is a general denial of allegations allowed in WOA?

No, unlike in Habeas Corpus.

o What is the omnibus waiver rule in WOA?

All the defenses not raised on the return are deemed

waived
What is the consequence of failure to file return?
o Ex parte hearing
Can there be institution of separate civil, criminal, or
administrative action notwithstanding a petition for WOA?
o Yes.
What is the effect of filing a criminal action?
o The petition for WOA is always consolidated with it, whether
filed ahead or later
What is the quantum of proof required for petition for WOA?
o Substantial evidence
o On the defense?

Private persons: ordinary diligence in duties

Public officials: extraordinary diligence in duties

Remedy

162

Habeas Corpus
To all cases of
illegal confinement

Amparo
Any person whose
right to life, liberty,

Habeas Data
same as
amparo, but the

Petitioner

Venue

or detention: 1)
person is deprived
of liberty, or 2)
rightful custody of
any person
withheld from the
person entitled
thereto
Party for whose
relief it is intended,
by some other
person on his
behalf

SC, CA, or SB
RTC:
1)
Plaintiffs
residence
2)
Defendants
residence
3)
Where nonresident
defendant is
found

Issuance
of writ

Immediately once
it appears

Summary
hearing

Upon filing of
return

and security is
violated/threatened
by unlawful act or
omission of public
official, public
employee, or private
individual/entity
Aggrieved party, or
any qualified person
or entity in the order
in sec. 2: (1.
Immediate family
member, 2. Relative
th
to 4 degree of
consanguinity, 3.
Concerned citizen,
org, assoc, etc.)

SC, CA, or SB:

Manila
RTC where the
violation occurred, or
any of its elements
N.B. if the writ is
issued by a higher
court, the writ is
returnable to it or any
of the lower courts
(e.g. for SB, either
there or RTC. For
SC, either CA, SB, or
RTC)
When in its face,
ought to issue
immediately
Not later than 7 days
from issuance

person must be
engaged in 1)
gathering, 2)
collecting, 3)
storing data or
information
regarding the
person
In general:
aggrieved party
Except for EJ
killings and
enforced
disappearances:
1) immediate
family, 2) in
default, relative
th
to 4 degree of
consanguinity

issuance

Service

Return

Penalties

N.B. no
concerned
citizen, etc.
SC, CA, or SB:
Manila
RTC: 1) where
petitioner
resides, 2)
where defendant
resides, or 3)
has J over place
where data is
gathered, etc.

Interim
reliefs

Served on person
to whom it is
directed; if cannot
be found or not
with custody, then
to person with
custody
Signed and sworn
to if prisoner not
produced
N.B. no period
specified for return
Clerk who doesnt
issue writ.
Person fails to
make return,
makes false return,
refuses to deliver
person demanding
(within 6 hours) the
copy of warrant or
order of
commitment
1)

2)
Same as
Amparo, but
within 3 days
Not later than 10
days from

163

Court may
adjourn for
good cause
and make
order for safe
keeping of
person
If person
cannot be
produced due
to grave
illness, court
must be
satisfied that

Why is it like this?

This way, its not
dependent on the
filing of the return
If cannot do it
personally, then
substituted service

Verified written return

Same as WOA

Same as WOA

Within 5 days from

service, without
extension
Clerk who doesnt
issue writ.
Deputized person
who doesnt serve
the writ.
Person fails to make
return, makes false
return, or
disobeys/resists
lawful court order.

1) Temporary
protection order
2) Inspection order
(5 days)
3) Production order
(of documentary
or object or
electronic
evidence)
4) Witness
protection order
N.B. 2 and 3 are
both available to

Same as WOA

Judgment

Appeal

he cannot be
produced
without danger
Discharge from
confinement

Ordinary appeal,
48 hours from
notice of judgment

respondent as well

Judgment within 10
days. If proved by
substantial evidence,
grant reliefs as
applicable.
Standard of
evidence?

Substantial
evidence
Diligence required
for defense?

Private person:
ordinary
diligence

Public official:
extraordinary
diligence
Rule 45 petition for
review on certioriari
with peculiar
features:
1) Appeal may
raise
questions of
law, fact, or
both
2) Appeal 5
working
days from
notice of
judgment
3) Same
priority as
habeas
corpus
cases

failure of petitioner or
witnesses to appear
due to threat to lives,
it should NOT
dismiss the petition;
just archive the case.

Same as
Amparo, but in
addition, the
judgment must
be enforced by
sheriffs or court
officers within 5
days

Separate
actions

Revival rule:
Court conducts
periodic review of
archived cases and
revives them if they
can proceed.
Dismiss case with
prejudice if 2 years
have lapsed from
archival.
Allowed

Same as WOA

When there is
criminal case, cannot
file for writ. But
reliefs allowed.

Same as WOA

Always consolidate
with the criminal
action

Change of name (103)

Archiving rule:
If court cannot
proceed due to

164

When can you ask for change of name?

o 1. Name is ridiculous, dishonorable, extremely hard to
pronounce
o 2. Change will avoid confusion
o 3. One has been continuously known as that name
o 4. Surname causes embarrassment and the desire to change it
is not for a fraudulent purpose
o 5. Consequence of change of status
Can a person have the childs Filipino middle name dropped for
the purpose of integration with the Singaporean community?
o No.
Where to file for change of name?

o
o

Surname: always in the courts

First name:

Local civil registrar:

If clerical

If any of three grounds in section 4 of RA

9048

Courts:

Everything else
What to file?
o 1. That petitioner is a bona fide resident of province where
petition was filed for at least (3) years prior to the date of such
filing
o 2. Cause for which change of petitioners name is sought
o 3. Name asked for
RA 9255 grounds by which an illegitimate child can use the
fathers surname:
o 1. Filiation recognized by father in civil register
o 2. OR Admission in public document or private writings
o N.B. But the father can institute action for non-recognition
anytime during his lifetime

Name of law

Notice given to:

o LCR
o All persons interested
How long is publication?
o 3 consecutive weeks (once a week)
Tenor of proceedings: Summary, but not if there are substantial
changes: adversarial
o For instance, if it is nullity or annulment, then it must be in
adversarial proceedings
o But see RA 9048

Removed from ambit of 108 typographical and clerical

errors, and change of first name/nick name under the
three stated grounds
Differentiate sex change from intersex persons and implications
on change of name:

Change of full
name
(substantial
correction)

Who may file

Person desiring
to change name

Venue

RTC of province
where petitioner
has resided the
past 3 years;
City of Manila:
Juvenile and
Domestic
Relations Court
1) petitioner is
bona fide
resident (3
years)
2) cause
3) name asked
for
1) name
ridiculous,
tainted with
dishonor,
extremely
difficult to
write/pronounce
2) consequence

Petition
contents

Grounds

165

103
Change of name

Subject matter

Cancellation or correction of entries in the civil registry (108)

Cagandahan case: natural change in sex allowed change of

sex and name
Silverio case: sex change procedure did not allow
108
Correction or
cancellation of
entries in civil
registry
Change or
corrections in
civil entries
(substantial)

Person
interested in any
matter
concerning
recorded civil
status of person
RTC of city or
province where
the registry is
located

SAME as 103

Good and valid

grounds

RA 9048
Clerical Error Act

Change of first
name, nick
name, and civil
entries
(typographical or
clerical errors)
Person with
direct and
personal interest
in correction

1) LCR of city or
municipality
where record is
2) LCR of place
where interested
party is residing
3) Phil.
Consulates
1) facts
necessary to
establish merits
2) particular
erroneous entry

1) Name
ridiculous,
tainted with
dishonor,
extremely
difficult to
write/pronounce
2) new first

Proceeding

Notice

Appeal

of change of
status
3) necessity to
avoid confusion
4) continuous
used and known
by Filipino name,
unaware of alien
parentage
5) sincere desire
to adopt Filipino
name to erase
signs of alienage
Judicial

o
o

name or
nickname
habitually and
continuous used,
and publicly
known
3) avoid
confusion

Administrative

Once a week for

3 consecutive
weeks in
newspaper
(notice of
hearing)

Summary (but
adversarial if
there are
substantial
changes)
Once a week for
3 consecutive
weeks in
newspaper
(notice of
hearing)

Not 30 days
prior to election;
not within 4
months of last
publication of
notice
CA

CA

Civil Registrar
General

Appeal
Once a week for
two consecutive
weeks (publish
affidavit)

Posting

Family home

1. For the declaration of a representative or

2. Declaration of absence and appointment of a trustee or
administrator
Who may file?
o 1. Spouse present
o 2. Testate heirs (must present an authentic copy of a will)
o 3. Intestate heirs
o 4. With interest over absentees property hinged on suspensive
condition of death
When can it be filed?
o 1. Two years from disappearance and without news about
absentee
o 2. Five years, in case he left an administrator in charge of his
property

Do you need a judicial declaration of a family home?

o No more. Its automatically constituted, under the Family
Code.

Appeal can be taken from what orders or judgments in settlement

of estates?
o 1. Allowance/disallowance of wills
o 2. Determines who are the lawful heirs of a deceased person
or distributive shares
o 3. Allows/disallows a claim, or claims presented on behalf of
the estate to offset a claim against it
o 4. Settlement of account of executor/admin/guardian
o 5. Final determination in lower court of rights of the party
appealing
o 6. Final order or judgment rendered in the case, affecting
substantial rights of appealing person, unless it is an order
granting/denying MBT/MR
Can the appointment of a Special Administrator be subject of
appeal?
o No.
What is the mode of appeal?
o Record on appeal
Venue

Absentees

Settlement of
What is the purpose of the rule?

166

Resident: where

Reglementary
period
Record on

Publication rule
EJ settlement: 3

estate

residing;

appeal 30
days

Non-resident:
where property
is

Escheat

Guardianship

Court in province
of last residence
Non-resident:
where estate is
located
Person of minor
in Family court
where minor
resides ;

Record of
appeal 60
days

Record on
appeal 30
days

weeks pub (of

fact of
settlement)
Summary
settlement: 3
weeks pub (of
time and date of
hearing)

Adoption

[3 weeks
successively for
proving will]
Postal service
20 days before
hearing,
personal service
10 days before
hearing

Habeas corpus

Property of
incompetent not
minor follow
300k/400k rule
Venue: Family
court of the
province or city
where the
adoptive parents
reside
SC, CA, SB
Plaintiffs
residence
Defendants
residence

Claims: 3 weeks
successively,
posted: 4 public
places in
province, 2 in
municipality
Once a week for
6 weeks
(hearing though
is at least 6
months after
order of court)
None

Amparo

Habeas data

OR
Non-resident
defendant,
where property
found
Manila: SC, CA,
SB
RTC with
jurisdiction over
where violation
or any of its
elements
happened
Manila: SC, CA,
SB
Plaintiffs
residence
Defendants
residence
OR
RTC with
jurisdiction
where data is
gathered,
collected, stored

Property of
minor same
Person of
incompetent, not
minor RTC of
residence

167

Record on
appeal 30
days

None

Ordinary appeal,
48 hours from
notice

None

Rule 45, but can

raise issues of
law and fact, and
within 5 days

None

Rule 45, but can

raise issues of
law and fact, and
within 5 days

None

Change of
name

Correction or
cancellation
Clerical or
typographical
error 9048

RTC of plaintiffs
residence for 3
years
Manila: Juvenile
and Domestic
relations court
RTC with
jurisdiction over
place of registry
LCR where
record is,
LCR of
residence, or
Phil. consulate if
nonresident

Record on
appeal

Once a week for

3 weeks

Record on
appeal

Once a week for

3 weeks

Civil Registrar
General

Once a week for

2 weeks
(affidavit
published)

ENVIRONMENTAL CASES

What is the scope and applicability of the rule?

o Involves all civil, criminal, and special proceedings cases
pending before courts involving enforcement and violation of all
environmental and related laws
o Ex. Forestry code, Water code, Sanitation code, LLDA act,
Toxic substances and hazardous waste act, IPRA, Mining act,
Fisheries code, Clean Air act, Chainsaw act, etc.

Civil Procedure

What is the rule on TROs?

o Except for the SC, no court can issue a TRO or preliminary
injunction against lawful acts of government agencies
enforcing environmental laws
What happens in pre-trial?
o The parties are under oath in all PTCs.
o The judge must exert best effort to arrive at a settlement of the
dispute.
o What is a consent decree?

168

It approves the agreement made by the parties in

accordance with law, morals, public order, and public
policy to protect right to balanced and healthful
ecology
What are the prohibited pleadings and motions?
o 1. Motion to dismiss complaint
o 2. Motion for bill of particulars
o 3. Motion for extension of time to file pleadings

Except to file an answer, where at most 15 days can

be given
o 4. Motion to declare defendant in default
o 5. Reply and rejoinder
o 6. Third party complaint
What is a Temporary Environmental Protection Order (TEPO)?
o It is issued when the matter is of extreme urgency and
applicant will suffer from grave injustice or irreparable injury
o Who may issue it?

Executive judge of multi-sala court or presiding judge

of a single-sala court
o How is it issued?

Ex-parte
o How long is it effective?

72 hours from date of receipt, unless there is

summary hearing within the period to determine
whether the TEPO should be extended until the end
of the case
o When can a TEPO be dissolved?

If it appears after the hearing that its issuance or

continuance would cause irreparable damage to the
party enjoined, and the applicant can be
compensated adequately

How is the applicant compensated?

The enjoined party has to file a bond

What reliefs can the court grant in a citizen suit?
o 1. Proper reliefs including protection, preservation, or
rehabilitation of the environment
o 2. Payment of attorneys fees, costs of suit, litigation expenses
o 3. Require violator to submit program for rehab or restoration
of the environment