Special Proceedings

San Beda College of Law
100
MEMORY AID
IN
REMEDIAL LAW
SPECIAL PROCEEDINGS
SPECIAL PROCEEDINGS - A remedy by
which a party seeks to establish a status,
a right or a particular fact. (Rule 1,
Section 3)
JURISDICTION
GENERAL RULE: Regional Trial Court
EXCEPTION: MTC has jurisdiction in the
following cases:
1. Probate proceedings whether testate
or intestate where the gross value of
the estate does NOT exceed
P300,000 or P400,000 in Metro
Manila, EXCLUSIVE of interest,
damages
of
whatever
kind,
attorneys fees, litigation expenses
and costs.
2. DELEGATED JURISDICTION
in Cadastral and Land
Registration Cases covering lots
where there is no controversy or
opposition or contested lots where
the value of which does not exceed P
100T.
appeal is taken to the CA, not
to the RTC since MTC is equal to RTC
in this instance.
3. SPECIAL JURISDICTION
petitions for writ of Habeas
Corpus in case of absence of RTC
judges.
SC and CA have original jurisdiction
over Habeas Corpus cases, concurrent
with the RTC.
ORDINARY
ACTION
SPECIAL
PROCEEDING
to protect or
enforce a right or
prevent or redress a
wrong
involves the
establishment of the
right, status or fact
involves two or
more parties
may involve only

one party
governed by
ordinary rules
governed by special
rules supplemented
supplemented by
special rules
by ordinary rules
heard by courts of
general jurisdiction
heard by courts of
limited jurisdiction
Initiated by a
pleading and parties
respond through an
answer
Initiated by means of
a petition and parties
respond by means of
an opposition
DIFFERENT MODES OF SETTLEMENT OF

ESTATE OF DECEASED PERSON
1. Extrajudicial Settlement of
Estate (Section 1, Rule 74)
2. Partition (Rule 69)
3. Summary
Settlement
of
Estate of Small Value (Section 3,
Rule 74)
4. Probate of Will (Rule 75 to
79)
5. Petition for
letters of
Administration in cases of
Intestacy (Rule 79)
PROCEDURE
PROCEEDINGS
IN
SETTLEMENT
Probate of the Will if

any (Rule 75 76)
Issuance of Letters
Testamentary/Administration
(A special administrator may be
appointed) (Rule 77-80)
Filing of Claims
(Rule 86)
Payment of Claims
Sale/Mortgage/Encumbrance
of Properties of the Estate
Distribution of Residue, if any

(But this can be made even before
payment if a bond is filed by the heirs)
REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

101
MEMORY AID
RULE 73
VENUE AND PROCESS
VENUE
INHABITANT
OF
PHILIPPINES (whether citizen or
alien) Court of province/city
where he resides at the time of
death.
INHABITANT OF FOREIGN
COUNTRY RTC of any province
wherein he had his estate.
Residence means his personal, actual
or physical habitation, his actual
residence or place of abode. (Fule vs.
CA, L-40502, Nov. 29, 1976)
Where estate of deceased persons
settled. (Sec.1)
2 KINDS OF SETTLEMENT
A. EXTRAJUDICIAL SETTLEMENT (Rule 74, Section 1)
B. JUDICIAL SETTLEMENT - Testate or

Intestate Proceedings instituted in
the country where decedent has his
residence
EXTENT OF JURISDICTION
Probate courts are courts of LIMITED
jurisdiction. It may only determine and
rule upon issues relating to the
settlement of the estate, namely:
1. administration of the estate;
2. liquidation of the estate;
and
3. distribution of the estate.
GENERAL RULE: Probate court cannot
determine issue of ownership.
EXCEPTIONS:
1. Provisionally, ownership may be
determined for the purpose of
including property in inventory,
without prejudice to its final
determination in a separate action;
or
IN
REMEDIAL LAW
2. When all the parties are heirs and

they submit the issue of ownership
to the probate court provided that
the rights of third parties are not
prejudiced. (Bernardo vs. CA, L18148, Feb. 28, 1963)
EXAMPLES OF OTHER QUESTIONS
WHICH THE PROBATE COURT CAN
DETERMINE
1. Who are the heirs of the
decedent;
2. The recognition of a natural
child;
3. The validity of disinheritance
effected by the testator;
4. Status of a woman who claims to
be the lawful wife of the
decedent;
5. The validity of a waiver of
hereditary rights;
6. The status of each heir;
7. Whether property in inventory is
conjugal or exclusive property of
deceased spouse;
8. All other matters incidental or
collateral to the settlement and
distribution of the estate.
PRINCIPLE OF EXCLUSIONARY RULE
The court first taking cognizance of the
settlement of the estate of the
decedent, shall exercise jurisdiction to
the exclusion of all other courts.
The probate court acquires jurisdiction
from the moment the petition for the
settlement is filed with said court. It
cannot be divested of such jurisdiction
by the subsequent acts of the parties as
by entering into extrajudicial partition
of the estate (Sandoval vs. Santiago, 88
PHIL 784); or filing another petition for
settlement in a proper court of
concurrent venue (De Boria vs. Tan, 77
Phil 872).
EXCEPTION:
Estoppel by LACHES
Jurisdiction under Rule 73 Sec. 1
does NOT relate to jurisdiction per se
but to venue. Hence, institution in the
court where the decedent is neither an

Special

102
MEMORY AID
inhabitant or have his estate may be
waived. (Uriarte vs. CFI, L-21938-39,
May 29, 1970)
Improper venue must be seasonably
raised. (Eusebio v. Eusebio, 100 PHIL
593)
REMEDY IF THE VENUE IS IMPROPERLY
LAID
ORDINARY APPEAL not certiorari or
mandamus UNLESS want of jurisdiction
appears on the record of the case.
RTC may issue writs and processes.
(Sec.3, Rule 73)
GENERAL RULE: Probate court cannot
issue writs of execution.
Reason: its orders usually refer to the
adjudication of claims against the estate
which the executor/administrator may
satisfy without the need of executory
process.
EXCEPTIONS:
EXCLUSIVE
(expressio
unius est exclusio alterius)
1.
To
satisfy
the
contributive
share
of
the
devisees, legates and heirs when
the latter had entered prior
possession over the estate. (Sec.
6, Rule 88)
2.
To enforce payment of
the expenses of partition. (Sec.
3, Rule 90)
Where the estate settled upon
dissolution of marriage (Sec.2)
Upon the death of either the husband or
the wife, the partnership affairs must be
liquidated in the testate or intestate
proceedings of the deceased husband or
wife. If both have died, liquidation may
be made in the testate or intestate
proceedings of either.
RULE 74
SUMMARY SETTLEMENT OF ESTATE
GENERAL RULE: If a person dies, his
estate is submitted to a judicial
settlement proceeding.
EXCEPTION: The heirs may resort to:
IN
REMEDIAL LAW
1. Extrajudicial settlement of estate;

or
2. Summary settlement of estate must
be conducted in accordance with
regular procedure NOT under rules
of summary procedure. (Regalado)
In these exceptions an administrator
or executor need not be appointed.
EXTRAJUDICIAL
SETTLEMENT
BY
AGREEMENT BETWEEN HEIRS (Sec.1)
Requisites:
A. Substantive
1. The decedent left a) no will
b) no debts
2. The heirs are all of age or the
minors are represented by their
judicial or legal representatives
duly authorized for the purpose
B. Procedural
1.
Division of estate must
be in a PUBLIC INSTRUMENT or
by AFFIDAVIT of ADJUDICATION
in the case of a sole heir.
2.
Filed
with
proper
Registry of Deeds
3.
Publication of notice of
the
fact
of
extrajudicial
settlement once a week for 3
CONSECUTIVE WKS.
4.
Bond filed equivalent to
the value of PERSONAL property.
The bond is required only when
personalty is involved or the real estate
is subject to a lien in favor of creditors,
heirs or other persons for the full period
of 2 years from such distribution and
such lien cannot be substituted by a
bond.
The bond is the value of the personal
property certified by the parties under
oath and CONDITIONED upon payment of
just claims filed under Sec. 4, Rule 74.
BOND
1. equivalent to the value of
personal property
2. certified by parties under oath
by an affidavit

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103
MEMORY AID
3. conditioned upon the payment of
just claims filed under Sec. 4.
If they cannot agree to the manner of
partition among themselves, they may
resort to Ordinary Action of Partition. If
despite the institution of such action
they subsequently arrived at an
agreement, they may enter into the
corresponding stipulation and register
the same with the Register of Deeds.
(Regalado)
Is a Public Instrument necessary for the
validity of an extrajudicial settlement?
NO. Private instrument/document or
Oral agreement of partition is valid
among the heirs who participated in the
extrajudicial
settlement.
The
requirement under Sec. 1, Rule 74 that
it must be in public instrument is NOT
constitutive of the validity but is merely
evidentiary in nature. (Hernandez vs
Andal)
However,
Reformation
compelled. (Regalado)
may
be
EXTRAJUDICIAL
SETTLEMENT
JUDICIAL
SETLLEMENT
No court intervention
requires summary
judicial adjudication
gross estate must not
exceed P10T
allowed in both
testate and intestate
available even if
there are debts; it is
the court which will
make provision for
its payment
May be instituted by
ANY INTERESTED
PARTY even a
creditor of the
estate without the
consent of all heirs
bond to be
determined by the
court
value of the estate

immaterial
allowed only in
intestate succession
there must be no
outstanding debts of
the estate at the
time of settlement
resorted at the
instance and by
agreement of ALL
heirs
amount of bond is
equal to the value of
personal property
While the Rules provide that the

decedent must not have left any debts,
it is sufficient if any debts he may have
IN
REMEDIAL LAW
left have been paid at the time of the

extrajudicial settlement is entered into.
(Guico vs. Bautista, 110 Phil 584)
DISPUTABLE
PRESUMPTION
THAT
DECEDENT LEFT NO DEBTS
If no creditor files a petition for letters
of administration within 2 years after
the death of the decedent.
SUMMARY SETTLEMENT OF ESTATE OF
SMALL VALUE (Sec.2)
GROSS VALUE of the estate must NOT
EXCEED P10, 000.
This is jurisdictional. (Del Rosario vs.
Conanan, L-37903, March 30, 1977)
IMPORTANT REQUIREMENTS
1. Application
must
contain
allegation of gross
value of
estate.
2. Date for hearing
a) shall be set by court not less
than 1 MONTH nor
more
than 3MONTHS from date of
last publication of notice;
b) published, ONCE A WEEK FOR
3 CONSECUTIVE WKS in a
newspaper
of
general
circulation.
3. Notice shall be served upon such
interested persons as the court
may direct.
4. Bond - amount fixed by the
court (not value of personal
prop) conditioned upon payment
of just claims under Sec.4.
LIABILITY
OF
ESTATE (Sec.4)
DISTRIBUTEES
AND
REQUISITES OF TWO-YEAR PERIOD LIEN

1. persons have taken part or
have notice of extrajudicial
partition
2. compliance
with
the
provisions of Sec.1, Rule 74
(Sampilo vs. CA)
BASIS TO COMPEL SETTLEMENT OF THE
ESTATE
1. undue deprivation of lawful
participation in the estate.

Special

104
MEMORY AID
2. existence of debts against the
estate or undue deprivation of lawful
participation payable in money.
REMEDIES
1. WITHIN 2 YRS. - claim against
the bond or the real estate.
2. Action to Annul a deed of
extrajudicial settlement on the
ground of FRAUD within 4
YEARS from the discovery of
fraud.
3. Reconveyance of real property.
Where the estate has been summarily
settled, the unpaid creditor may, within
2 years, file a motion in the court
wherein such summary settlement was
had, for the payment of his credit.
EXCEPTION:
If on the date of the
expiration of the two-year period, the
creditor or heir is a) A minor or incapacitated, or
b) In prison or
c) Outside the Philippines,
he may present his claim within one year
after such disability is removed. (Sec. 5
Rule 75)
The 2-year lien upon the real property
distributed by extrajudicial or summary
settlement shall be annotated on the
title issued to the distributees and after
2 years will be cancelled by the register
of deeds without need of court order
(LRC CIRCULAR 143)
Such lien cannot be discharged nor the
annotation be cancelled within the 2
year period even if the distributees offer
to post a bond to answer for contingent
claims from which lien is established.
(Rebong vs. Ibanez, 79 Phil 324)
RULE 75
PRODUCTION OF WILL/ ALLOWANCE OF
WILL NECESSARY
Section 1. Allowance necessary,
conclusive as to execution.
NATURE OF PROBATE PROCEEDINGS
IN
REMEDIAL LAW
1.
IN REM -binding on the
whole world.
2.
MANDATORY - no will
shall pass either real or personal
property unless it is proved and
allowed in the proper court.
HOWEVER, it has been held in
one case that a will may be
sustained on the basis of Article
1080 of the Civil Code which
reads as follows:
If the testator should make a
partition of his properties by an
act inter vivos, or by will, such
partition shall stand in so far as
it does not prejudice the
legitime of the forced heir.
(Mang-Oy vs. CA, 144 SCRA 33).
3.
IMPRESCRIPTIBLE
because of the public policy to

obey the will of the testator.
4.
The
DOCTRINE
OF
ESTOPPEL does not apply.
Reason: presentation
and
probate of will is required by
public policy and involves public
interest.
(Fernandez
vs.
Dimagiba)
RULE 76
ALLOWANCE OR DISALLOWANCE OF
WILL
Probate or Allowance of Wills - act of
proving in a court a document purporting
to be the last will and testament of a
deceased person in order that it may be
officially recognized, registered and its
provisions carried insofar as they are in
accordance with law.
Who may petition for allowance of will?
(Sec.1)
1. any creditor - as preparatory
step for filing of
his claim
therein (Regalado, p.26)
2. devisee or legatee named in the
will
3. person interested in the will
(e.i., heirs)
4. testator himself during his
lifetime the possession of the
will is not necessary

Special

105
MEMORY AID
Who may be a party in probate?
Generally, any person having a direct
and material interest in the will or
estate.
CONTENTS OF THE PETITION (Sec.2)
1. the jurisdictional facts death
of the testator and his residence
at the time of death or the
province where estate was left
by the decedent who is a nonresident;
2. the names, ages, and residences
of the heirs, legatees, devisees
of the testator or decedent;
3. the probable value and character
of the property of the estate;
4. the name of the person for
whom the letters are prayed;
5. the name of the person having
custody of the will if has not
been delivered to the court.
But no defect in the petition shall render
void the allowance of the will, or the
issuance of letters testamentary or of
administration with the will annexed.
EFFECT OF THE PROBATE OF A WILL
It is conclusive as to the EXECUTION and
the VALIDITY of the will (even against
the state). Thus, a criminal case against
the forger may not lie after the will has
been probated.
ISSUE IN THE PROBATE OF A WILL
GENERAL RULE:
Only determination of the extrinsic
validity not the intrinsic validity or
testamentary dispositions.
EXCEPTION: Where the entire or all
testamentary dispositions are void and
where the defect is apparent on its face.
(Acain vs. IAC GR No. 72706, Oct. 27,
1987; Nepumuceno vs. CA, 139 SCRA
206)
EXTRINSIC VALIDITY
execution of the will.
means
due
MEANING AND EXTENT DUE EXECUTION

Due execution means that:
IN
REMEDIAL LAW
1. the testator is of sound and

disposing
mind
when
he
executed the will;
2. the will was NOT executed under
duress,
fraud
or
other
circumstances
that
vitiates
consent;
3. the required formalities have
been strictly complied with; and
4. the will is genuine and not a
forgery.
COURT APPOINTS TIME FOR PROVING
WILL. NOTICE THEREOF TO BE
PUBLISHED (Sec.3)
When does court acquire jurisdiction
over interested persons and res?
Upon
PUBLICATION
for
3
WKS
successively of the order setting the case
for hearing AND sending NOTICES to all
persons interested.
NOTICES MUST BE GIVEN TO:
1. designated or known heirs,
legatees and devisees; and
2. executor and co-executor if not
the petitioner.
MODES OF NOTIFYING
By mail: 20 days before hearing
Personal notice: 10 days before hearing
3 weeks successively is not strictly 21
days.
ANTE MORTEM
If petition for probate is on testators
own initiative during his lifetime 1. no publication is necessary; and
2. notice shall be made only to the
compulsory heirs.
PROOF OF HEARING (Sec.5)
At
the
hearing,
compliance
of
Publication and Notice must first be
shown before introduction of testimony
in support of the will.
EVIDENCE in support of will:
1. UNCONTESTED WILL (Sec.5)
a) Notarial Wills - testimony of at
least 1 of the subscribing
witnesses is allowed.

Special

106
MEMORY AID
- if all subscribing witnesses
reside outside the province
deposition is allowed.
- if subscribing witnesses
reside is dead, insane, or none
reside in the Philippines Court
may admit testimony of the
witnesses to prove the sanity of
the testator, and the due
execution of the will, and as
evidence of the execution of the
will, it may admit proof of the
handwriting of the testator and
of the subscribing witnesses or of
any of them.
b) Holographic
Wills
the
testimony of 1 witness who
knows the handwriting and
signature of the testator. In the
absence thereof, testimony of an
expert witness.
2. CONTESTED (Sec.11)
a) Notarial Wills - ALL subscribing
witnesses AND notary public.
HOWEVER, if any or all the
witnesses (i) testify against the
execution of the will, (ii) do not
remember attesting thereto, or
(iii) of doubtful credibility, the
will may be allowed if the court
is satisfied from the testimony of
other witnesses and from all the
evidence presented that the will
was executed and attested in
the manner required by law.
IN
REMEDIAL LAW
GENERAL RULE: Holographic will if

destroyed CANNOT be probated.
EXCEPTION: If there exists a Photostat
or Xerox copy thereof. (Gan vs. Yap, 104
Phil 509)
Proof of lost or destroyed will (Sec.6)
Facts which should be proved in order
that a lost or destroyed will may be
allowed:
1. due execution and validity of the
will;
2. will was in existence when
testator died, or if it was not,
that it has been fraudulently or
accidentally destroyed in the
lifetime of the testator without
his knowledge; and
3. the provisions of the will are
clearly established by at least
two credible witnesses.
RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE
OF PHILIPPINES AND ADMINISTRATION
OF ESTATE THEREUNDER
A will allowed or probated in a foreign
country, must be RE-PROBATED in the
Philippines. If the decedent owns
properties
in
different
countries,
separate administration proceedings
must be had in said countries.
b) Holographic Wills - 3 witnesses

who knows the handwriting of
testator. In the absence thereof,
testimony of an expert witness
may be resorted to.
TWO TYPES OF ESTATE PROCEEDINGS:

1. Domicilliary administration the proceeding instituted in last
residence of the decedent.
2. Ancillary administration - the
administration
proceedings
where he left his estate.
HOWEVER, in Codoy vs.

Calugay, GR NO. 123486, Aug.
12, 1999, the SC ruled that if the
holographic will is contested, 3
witnesses
who
know
the
handwriting and signature of the
testator
are
now
required/mandatory to prove its
authenticity
and
for
its
allowance.
REQUISITES
OF
ANCILLARY
ADMINISTRATION (Sec.2)
1.
there must be a will
(inferred from the wordings of
Rule 77);
2.
filing of:
a) copy
of
the
will
executed in foreign country;

Special

107
MEMORY AID
3.
of
4.
5.
b) order or decree of
foreign court allowing such
will; and
c) authentication
of
requisites a and b above;
notice of time and place
hearing;
hearing; and
certificate of allowance.
Can a will executed and proved in a

foreign country be allowed in the
Philippines under Rule 77?
YES. Provided that the following must
be proved:
1. foreign
court
must
have
jurisdiction over the proceeding;
2. domicile of testator/decedent in
the foreign country and not in
the Philippines;
3. that the will has been admitted
to probate in such country;
4. it was made with the formalities
prescribed by the law of the
place in which the decedent
resides, or according to the
formalities observed in his
country, or in conformity with
the formalities prescribed by our
Civil Code; and
5. due execution of the will in
accordance with the foreign
laws. (Regalado)
EFFECTS
1. the will shall have the same
effect as if originally proved and
allowed in court of the
Philippines.
2. letters
testamentary
or
administration with a will
annexed shall extend to all
estates of the Philippines.
3. Residue of estate after payment
of debts, etc. shall be disposed
of as provided by law in cases of
estates in Philippines belonging
to persons who are inhabitants
of another state or country.
IN
REMEDIAL LAW
LETTERS TESTAMENTARY AND OF

ADMINISTRATION WHEN AND TO WHOM
ISSUED
PERSONS WHO CAN ADMINISTER THE
ESTATE
1. Executor;
2. Administrator, regular or special
(Rule 80); and
3. Administrator
with
a
will
annexed (Rule 79, Section 1).
Executor - The one named by the
testator in his will for the administration
of his property after his death.
Administrator - One appointed by the
Court in accordance with the Rules or
governing statutes to administer and
settle the intestate estate or such
testate estate, where the testator did
not name any executor or that the
executor so named refuses to accept the
trust, or fails to file a bond, or is
otherwise incompetent.
Administrator with a will annexed - one
appointed by the court in cases when,
although there is a will, the will does not
appoint any executor, or if appointed,
said person is either incapacitated or
unwilling to serve as such.
WHO MAY SERVE AS EXECUTOR/
ADMINISTRATOR?
Any COMPETENT person may serve as
executor or administrator.
WHO ARE INCOMPETENT TO SERVE AS
EXECUTOR/ADMINISTRATOR?
1. a minor
2. a non-resident
3. one who in the opinion of the
court is unfit to exercise the
duties of the trust by reason of:
a) drunkenness
b) improvidence
c) want of understanding and
integrity
d) conviction for an offense
involving moral turpitude
RULE 78

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108
MEMORY AID
Executor of executor shall not, as
such, administer the estate of the first
testator. (Sec. 2)
Letters testamentary - Authority issued
to an executor named in the will to
administer the estate.
Letters of administration Authority
issued by the court to a COMPETENT
person to administer the estate of the
deceased who died intestate.
TO
WHOM
LETTERS
ADMINISTRATION GRANTED
OF
Order Of Preference
1. The surviving husband or wife or
the next of kin, or both in the
discretion of the court, or to
such person as such surviving
spouse or next of kin, request to
have appointed, if competent
and willing to serve. (SURVIVING
SPOUSE OR NOMINEE)
2. If the surviving spouse or the
next of kin or the person
selected
by
them
be
incompetent or unwilling to
serve, or if the surviving spouse
or next of kin neglects for 30
days after the death of the
decedent
to
apply
for
administration, ANY one or more
of the PRINCIPAL CREDITORS, if
competent and willing to serve.
3. If there is no such creditor
competent and willing to serve,
it may be granted to such other
person as the court may select.
(STRANGER)
The Order of appointment of Regular
administrator is final and appealable.
BASIS FOR THE PREFERENTIAL RIGHT
The underlying assumption is that those
who will reap the benefits of a wise,
speedy and economical administration of
IN
REMEDIAL LAW
the estate or on the other hand, suffer

the
consequences
of
waste,
improvidence or mismanagement, have
the higher interest and most influential
motive to administer the estate
correctly.
RULE 79
OPPOSING ISSUANCE OF LETTERS
TESTAMENTARY PETITION AND
CONTENTS FOR LETTERS OF
ADMINISTRATION
What is the MAIN ISSUE in an
administration proceeding?
Who is the person rightfully entitled to
administration.
Who may oppose the issuance of
letters?
GENERAL RULE: Any person interested
in the will. (Section 1)
EXCEPTION: Even where a person who
had filed a petition for the allowance of
the will of the deceased person had no
right to do so in view of his lack of
interest in the estate, nevertheless,
where the interested persons did not
object to its application, the defect in
the petition would be deemed cured.
The filing of the petition may be
considered as having been ratified by the
interested
parties.
(Eusebio
vs.
Valmores 97 PHIL 163)
Petition for Opposition may at the same
time
be
filed
for
Letters
of
Administration with the will annexed.
Contents of a petition for letters of
administration: (Sec.2)
a) jurisdictional facts;
b) name, age, residence of heirs
and creditors;
c) probable value and character of
the estate; and
d) name of the person for whom
letters is prayed for.
No defect in the petition shall render
void the issuance of the letters of
administration.
Grounds for Opposition:
1. In Letters Testamentary

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109
MEMORY AID
a) incompetence
2. In Letters of Administration
a) incompetence;
b) preferential right of the
heir under Sec. 6, Rule 78.
Publication for 3 Weeks and notice to
heirs, creditors and other persons
believed to have an interest in the
estate is required before hearing.
Letters can be granted to any person or
any other applicant even if other
competent persons are present if the
latter fail to claim their letters when
notified by the court. (Sec. 6, Rule 79)
RULE 80
SPECIAL ADMINISTRATOR
When may a probate court appoint a
special administrator?
1.
Delay in granting of
letters including appeal in the
probate of the will.
2.
Executor is a claimant of
the estate he represents.
- in this second instance, the
administrator shall have the
same powers as that of a
general administrator.
ORDER
OF
APPOINTMENT
DISCRETIONARY
The preference accorded by Sec. 6 of
Rule 78 of the Rules of Court to surviving
spouse refers to the appointment of a
regular administrator, NOT to that of
special administrator, and that the order
appointing the later lies within the
discretion of the probate court, and is
not appealable. (Pijuan vs. De Gurrea,
124 Phil. 1527)
POWERS AND DUTIES
1.
Possession and charge of
the goods, chattels,
rights,
credits, and estate of the
deceased;
2.
Commence and maintain
suit for the estate;
3.
Sell ONLY
a)
perishable property; and
b) those ordered by the court;
IN
REMEDIAL LAW
4. Pay debts ONLY as may be

ordered by the court.
DURATION OF POWER OF SPECIAL
ADMINISTRATOR
Until questions causing the delay is
decided and the regular administrator is
appointed.
When does the power of a special
administrator cease?
After the questions causing the delay are
resolved and letters are granted to
regular executor or administrator.
Is appointment of special administrator

appealable?
NO, the same is INTERLOCUTORY.
However, appointment of a REGULAR
ADMINISTRATOR is appealable because it
is a final order.
It is possible for the executor or
administrator whose appointment is
challenged by appeal to be appointed
also as the special administrator pending
such appeal. There is no harm in
appointing the same person as special
administrator because there is a vast of
difference between the powers and
duties of the two positions.
RULE 81
BONDS OF EXECUTOR AND
ADMINISTRATOR
BOND OF EXECUTOR/ADMINISTRATOR
(Sec.1)
When filed?
Before an executor or administrator
enters upon execution of his trust
Amount? Fixed by the court
CONDITIONS
1. Make an INVENTORY of property
which came to his knowledge
and possession within 3 MONTHS.

Special

110
MEMORY AID
2. ADMINISTER the estate and from
the proceeds pay all debts and
charges.
3. Render an ACCOUNT within ONE
YEAR
4. Perform all orders of the court.
ADMINISTRATORS BOND STATUTORY
BOND
Conditions prescribed by statute forms
part of bond agreement.
Terms and effectivity of bond does not
depend on payment of premium and
does not expire until the administration
is closed. As long as the probate court
retains jurisdiction of the estate, the

bond contemplates a continuing liability.
(Luzon Surety vs. Quebrar, 127 SCRA
295).
BOND OF SPECIAL ADMINISTRATOR
(Sec.4)
Conditions
1.
make inventory.
2.
render accounting when
required by court.
3.
deliver the same to
person appointed executor or
administrator
or
other
authorized persons.
The bond is effective as long as the
court
has
jurisdiction
over
the
proceedings.
RULE 82
REVOCATION OF ADMINISTRATION,
DEATH, RESIGNATION AND REMOVAL OF
EXECUTORS AND ADMINISTRATORS
If after letters of administration have
been granted on the estate of the
decedent as if he had died intestate, his
will is allowed and proved by the court,
the letters of administration shall be
revoked and all powers thereunder
cease, and the administrator shall
forthwith surrender the letters to the
IN
REMEDIAL LAW
court, and render his account within

such time as the court may direct.
The discovery of a will does NOT ipso
facto nullify the letters of administration
already issued until the will has been
proved and allowed pursuant to Rule 82
Sec. 1. (De Parreno vs. Aranzanso, GR
No. L-27657, Aug. 30, 1982)
RESIGNATION
OR
REMOVAL
OF
EXECUTOR/ ADMINISTRATOR (SEC.2)
Grounds
1. neglect to render accounts;
(w/in 1 YEAR or when the court
directs);
2. neglect
to
settle
estate
according to these rules;
3. neglect to perform an order or
judgment of the court or a duty
expressly provided by these
rules;
4. absconding; or
5. insanity or incapability or
unsuitability to discharge the
trust. (Sec. 2)
These grounds are EXCLUSIVE.
Lawful acts of an administrator or
executor
before
the
revocation,
resignation, or removal are valid unless
proven otherwise. (Sec.3)
POWERS OF NEW EXECUTOR OR
ADMINISTRATOR (Sec. 4)
1. collect and settle the estate not
administered;
2. prosecute or defend actions
commenced by or against the
former
executor
or
administrator; and
3. recover execution on judgments
in the name of former executor
or administrator.
RULE 83
INVENTORY AND APPRAISAL PROVISION
FOR SUPPORT OF FAMILY
Inventory and appraisal must be made
within 3 MONTHS from the grant of
letters
testamentary
or
of
administration. (Sec.1)

Special

111
MEMORY AID
Approval of an inventory is not a
conclusive determination of what assets
constituted the decedents estate and of
the
valuation
thereof.
Such
determination is only provisional and a
prima facie finding of the issue of
ownership.
ALLOWANCE TO WIDOW AND FAMILY
(Sec.3)
Allowance - monetary advances subject
to collation and deductible from their
share in the estate of the decedent.
Who are entitled to allowance during
proceedings?
1. Legitimate
surviving
spouse
(Nepomuceno vs CA); and
2. Children of the decedent.
According to Art. 188 of the Civil
Code, the children need not be minors
or incapacitated to be entitled to
allowance. (Santero vs CFI of Cavite, GR
No. 61700-03, Sept. 24, 1987)
Grandchildren are NOT entitled to
allowance under Rule 83. (Heirs of Ruiz
vs CA)
When liabilities exceed the asset of the
estate, his widow and children are not
entitled to support pending the
liquidation of the intestate estate, on
the ground that such support, having the
character of an advance payment to be
deducted from the respective share of
each heir during distribution. (Wagner
vs. Moore)
RULE 84
GENERAL POWERS OF EXECUTORS AND
ADMINISTRATORS
POWERS
OF
EXECUTOR/
ADMINISTRATOR OF THE ESTATE
1. To have access to, and examine
and take copies of books and
papers
relating
to
the
partnership in case of a
deceased partner;
IN
REMEDIAL LAW
2. To examine and make invoices of

the property belonging to the
partnership in case of a
deceased partner;
3. To make improvements on the
properties under administration
with
the
necessary
court
approval except for necessary
repairs;
4. To possess and manage the
estate when necessary:
a) for the payment of debts;
and
b) for payment of expenses of
administration;
5. To maintain in tenantable
repairs
houses
and
other
structures and fences and to
deliver the same in such repair
to the heirs or devisees when
directed so to do by the court.
SOME RESTRICTIONS ON POWER OF
ADMINISTRATOR/EXECUTOR
1. Cannot acquire by purchase,
even at public or judicial
auction, either in person or
mediation of another, the
property under administration.
2. Cannot borrow money without
authority of the court.
3. Cannot
speculate
with
funds under administration.
4. Cannot lease the property for
more than one year.
5. Cannot continue the business of
the deceased unless authorized
by the court.
6. Cannot profit by the increase or
decrease in the value of the
property under administration.
RULE 85
ACCOUNTABILITY AND COMPENSATION
OF EXECUTORS AND ADMINISTRATORS
GENERAL RULE: The executor or
administrator is accountable for the
whole estate of the deceased.
EXCEPTION: He is not accountable for
properties which never came to his
possession.

Special

112
MEMORY AID
EXCEPTION TO THE EXCEPTION: When
through untruthfulness to the trust or his
own fault or for lack of necessary action,
the executor or administrator failed to
recover part of the estate which came to
his knowledge.
Administrator or executor shall not profit
by the increase of the estate nor be
liable for any decrease which the estate,
without his fault, might have sustained.
EXPENSES OF ADMINISTRATION: those
necessary for the management of the
property, for protecting it against
destruction
or
deterioration,
and
possibly for the production of fruits.
When shall executor or administrator

render an account? (Sec.8)
RULE: Within one year from the time of
receiving letters testamentary or letters
of administration.
EXCEPTION: An extension of time is
allowed for presenting claims against or
paying the debts of the estate for
disposing of the estate but even in such
cases, the administration should be
terminated in not more than two-years
and a half.
RULE 86
CLAIMS AGAINST ESTATE
Claim - any debt or pecuniary demand
against the decedents estate.
When may a court issue notices to
creditors to file their claims?
Immediately issued after granting letters
testamentary or of administration.
PURPOSE: for the speedy settlement of
the affairs of the deceased person and
early delivery of the property of the
estate into the hands of the persons
entitled to receive it.
Claims arising AFTER his death cannot be
presented except for:
IN
REMEDIAL LAW
a) funeral expenses; and

b) expenses of the last sickness of
the decedent.
Claims for taxes (inheritance and estate)
due and assessed after the death of the
decedent need not be presented in the
form of a claim. The court in the
exercise of its administrative control
over the executor or administrator may
direct the latter to pay such taxes. And
the heirs, even after distribution are
liable for such taxes.
STATUTE OF NON-CLAIMS (Sec.2)
When should the claims be filed?
GENERAL RULE: Within in the time fixed
in the notice which shall not more than
12 MONTHS nor less than 6 MONTHS after
the date of the FIRST PUBLICATION.
Otherwise, they are BARRED FOREVER.
Even if the testator acknowledged the
debt in his will and instructed the
executor to pay the debt, the statute of
non-claims must still be complied with;
otherwise the claim may also be barred.
EXCEPTION: Belated Claims.
Belated Claims are claims not filed
within the original period fixed by the
court. On application of a creditor who
has failed to file his claim within the
time previously limited, at ANY TIME
BEFORE an order of distribution is
entered, the court MAY, for cause shown
and on such terms as are equitable,
allow such claim to be filed within a
time NOT EXCEEDING 1 MONTH from the
order allowing belated claims.
Statute of Non-Claims supersedes the
Statute of Limitations insofar as the
debts
of
deceased
persons
are
concerned. However, BOTH statute of
Non-Claims and Statute of Limitations
MUST CONCUR in order for a creditor to
collect.
Claims which are not filed within the
Statute of Non-Claims are barred
forever (Sec.5)

Special

113
MEMORY AID
Claims referred to under this section
refer to claims for the recovery of
money and which are not secured by a
lien against the property of the estate.
(Olave vs. Carlos, 208 Phil 678)
Claims which should be filed under the
Statute of Non-claims?
1. Money claims, debts incurred by
deceased during his lifetime
arising from contract
2. express or implied
3. due or not due
4. absolute or contingent
5. Claims for funeral expenses and
for the last illness of the
decedent.
6. Judgment for money against
decedent.
Contingent Claim conditional claim or
claim that are subject to the happening
of a future uncertain event.
Claims not yet due or contingent may be
approved at their present value.
HOWEVER, a creditor barred by the
Statute of Non-claims may file a claim as
a COUNTERCLAIM in any suit that the
executor or administrator may bring
against such creditor.
SOLIDARY OBLIGATION OF DECEDENT
(Sec.6)
Claim should be filed against decedent
as if he were the only debtor without
prejudice on the part of the estate to
recover contribution from the other
debtor. (Jaucian vs Quero, 38 Phil 707l)
Joint obligation of decedent
The claim must be confined to the
portion belonging to the decedent.
MORTGAGE DEBT DUE FROM ESTATE
(Sec.7)
ALTERNATIVE
REMEDIES
Of
The
Creditor Holding A Claim Secured By A
Mortgage Or Other Collateral Security
1. ABANDON security and prosecute
his claim against the estate and
share in the same general
IN
REMEDIAL LAW
distribution of the assets of the

estate;
2. FORECLOSE his mortgage or
realize upon his security by
action in court making executor
or
administrator
a
party
defendant and if there is
judgment for DEFICIENCY, he
may file a claim (contingent)
against the estate within the
statute of non-claims.
Agency coupled with an interest
The power to foreclose a mortgage is
not an ordinary agency that
contemplates
exclusively
the
representation of the principal by
the agent but is primarily an
authority
conferred
upon
the
mortgagee
for
latters
own
protection. That power survives the
death of the mortgagor. (Bicol
Savings and Loan Association vs. CA)
3. RELY SOLELY ON HIS MORTGAGE
and foreclose the name at
anytime within the period of the
statute of limitation but he
cannot be admitted as creditor
and shall not receive in the
distribution of the other assets
of the estate;
These remedies are alternative, the
availment of one bars the availment of
other remedies.
JUDGMENT ALLOWING CLAIM (Sec.13)
Judgment
against
executor
and
administrator shall not create any lien
upon the property of the estate or does
not constitute a specific lien which may
be registered on such property.
Judgment of a probate court approving
or disapproving a claim is appealable.
The mode of appeal is record on
appeal and must be filed within 30 DAYS
from notice of judgment.
RULE 87

Special

114
MEMORY AID
ACTIONS BY AND AGAINST EXECUTORS
AND ADMINISTRATORS
Actions which may or may not be
brought
against
executor
and
administrator (Sec.1)
Independent
and separate of the
probate proceeding:
1. recovery of real or personal
property or any interest therein
from the estate
2. enforcement of a lien thereon
3. action to recover damages for
any injury to person or property,
real or personal (tortuous acts)
These are actions that survive the death
of the decedent.
An action for revival of money judgment
may be filed against the administrator to
preempt prescription of judgment.
(Romualdez vs. Tiglao, 105 SCRA 762).
Heir may not sue until share assigned
(Sec.3)
Before distribution is made or before any
residue is known, the heirs and devisees
have no cause of action against the
executor or administrator for recovery of
the property left by the decedent.
Proceedings when property concealed,
embezzled or fraudulently conveyed
(Sec.6)
PURPOSE: To elicit information or to
secure evidence from those persons
suspected as having possessed or having
knowledge of properties belonging to
deceased, or of having concealed,
embezzled or conveyed away any
properties of the deceased.
GENERAL RULE: The probate court has
no authority to decide whether or not
the properties belong to the estate or to
the person being examined since probate
courts are courts of limited jurisdiction.
EXCEPTIONS:
1. Provisional determination of
ownership for inclusion in the
inventory; or
2. Submission
to
the
courts
jurisdiction (Bernardo vs. CA, GR
No. 82483, Sept. 26, 1990)
IN
REMEDIAL LAW
Embezzlement before letters issued

(Sec.8)
The responsible person shall be liable to
an action in favor of the executor or
administrator of the estate for double
the value of the property sold,
embezzled, or alienated, to be
recovered for the benefit of the estate.
Property fraudulently conveyed by the
deceased may be recovered. When
executed or administered must bring
action (Sec.9)
This provision applies when there is a
deficiency of assets in the hands of the
executor or administrator for the
payment of the debts and expenses for
administration
administration for it is under this
circumstance that there may be
conveyances made by the deceased with
intent to defraud the creditor.
REQUISITES BEFORE ACTION MAY BE
FILED
1. deficiency in assets
2. the conveyance made is void (when
there are badges of fraud)
3. subject of conveyance is liable for
attachment
in
lifetime
of
decedent.
When creditor may bring action. Lien
for costs (Sec.10)
When a grantee in a fraudulent
conveyance is OTHER THAN THE
EXECUTOR
OR
ADMINISTRATOR,
a
creditor may commence and prosecute
the action if the following requisites are
present:
1. That
the
executor
or
administrator has shown to have
no desire to file the action or
failed to institute the same
within the reasonable time;
2. Leave is granted by court to
creditor to file the action;
3. Bond is filed by creditor as
prescribed in this provision; and
4. Action by creditor is in the name
of the executor or administrator.

Special

115
MEMORY AID
These requisites need not be

complied with if the grantee of the
fraudulent conveyance is the executor or
administrator himself, in which event
the action should be in the name of all
creditors.
RULE 88
Debts paid in full if estate sufficient
(Sec.1)
If estate is insolvent, as in liabilities are
more than the assets, Sec.7 in relation
to Art. 1059 and 2239 to 2251 of the
Civil Code must apply. Use rule on
preference of creditors If it is sufficient
to satisfy claims of a class.
When the will provides for payment of
debts, Section 2 must be followed.
Although testator acknowledged a
specific debt on his will, the creditor
must still file his claim in the testate or
intestate proceedings, otherwise his
claim will be barred.
Estate to be retained to meet
contingent claims (Sec.4)
If the court is satisfied that contingent
claim duly filed is valid, it may order the
executor or administrator to retain in his
hands sufficient estate to pay a portion
equal to the dividend of the creditors.
REQUISITES
1. contingent claim is duly filed;
2. court is satisfied that the claim
is valid; and
3. The claim has become absolute.
Is execution a proper remedy to satisfy
an approved claim?
NO, because:
1.
Payment
approving a
claim does not create a lien
upon a property of the estate.
2.
Special procedure is for
the court to order the sale to
satisfy the claim.
IN
REMEDIAL LAW
How
contingent
claim
becoming
absolute in two years allowed and paid
(Sec.5)
If such contingent claim becomes
absolute and is presented to the court,
or to the executor or administrator,
within two years from the time limited
for other creditors to present their
claims. The residual funds within the
estate, although already in the
possession of the universal heirs, are
funds of the estate. The Court has
jurisdiction over them and it could
compel the heirs to deliver to the
administrator of the estate the
necessary portion of such funds for the
payment of any claims against the
estate. (In re Testate Estate of
Margarita David, Sison vs. Teodoro, 98
Phil 680)
If the contingent claim matures after the
expiration of the two years, the
creditors may sue the distributees, who
are liable in proportion to the shares in
the estate respectively received by
them. (Jaucian vs. Querol, supra)
It has been ruled that the only instance
wherein a creditor can file an action
against a distributee of the debtors
assets is under Sec. 5, Rule 88 of the
Rules of Court. The contingent claims
must first have been established and
allowed in the probate court before the
creditors can file an action directly
against the distributees. (De Bautista vs.
De Guzman, 125 SCRA 682)
Estate of Insolvent nonresident, how
disposed (Sec.9)
In the administration taken in the
Philippines of the estate of the
INSOLVENT his estate in the Philippines
shall be disposed of that his creditors in
and outside in the Philippines in
proportion to their respective credits.
When and how claim proved outside
the Philippines against insolvent
residents estate paid (Sec.10)
Claims proven outside the Philippines
where the executor had knowledge and

Special

116
MEMORY AID
opportunity to contest its allowance
therein may be added to the list of
claims in the Philippines against the
estate of an INSOLVENT RESIDENT and
the estate will be distributed equally
among those creditors.
However the benefit of Sections 9 and 10
cannot be extended to the creditors of
foreign country where the property of
the deceased therein is not equally
apportioned to creditors residing in the
Philippines and other creditors.
Time for paying Debts and Legacies
(Sec.15)
Need not exceed 1 year in the first
instance.
But
court
extend
on
application of executor or administrator
and after hearing and notice thereof.
Extension must not exceed six months
for single extension. Whole period
allowed to the original executor or
administrator shall not exceed 2 years
(section 15) successor of dead executor
or administrator may be given an
extension not to exceed 6 months.
RULE 89
SALES, MORTGAGE AND OTHER
ENCUMBRANCES OF THE PROPERTY OF
THE DECEASED
Order of sale of personalty (Sec.1)
The court may order the whole or part of
the personal estate to be sold if
necessary:
1. to pay debts and expense of
administration;
2. to pay legacies; or
3. to cover expenses for the
preservation of the estate.
When court may authorize sale,
mortgage or other encumbrances of
realty to pay debts and legacies though
personality not exhausted? (Sec. 2)
1. If personal estate is NOT
sufficient to pay debts, expenses
of administration and legacies;
IN
REMEDIAL LAW
2. If sale of personal estate may

injure the business or interests
of those interested in the estate;
3. If testator has NOT made
sufficient provision for payment
of such debts, expenses and
legacies;
4. If deceased was in his lifetime
under contract, binding in law to
deed
real
property
to
beneficiary; (Section 8)
5. If the deceased during his
lifetime held real property in
trust
for
another
person.
(Section 9)
REQUISITES
a)
application of
Executor/Administrator;
b)
written notice to person
interested; and
c)
hearing
Assets
in
the
hands
of
executor/administrator will not be
reduced to prevent a creditor from
receiving his full debt or diminish his
dividends.
Without notice and hearing, the sale,
mortgage or encumbrance is void. Notice
is mandatory. Noncompliance therewith
under the sale is null and void.
Reason:
The reason behind this
requirement is that the heirs are the
presumptive owner. Since they succeed
to all the rights and obligation of the
deceased from the moment of the
latters death, they are the person
directly affected by the sale or mortgage
and therefore cannot be deprived of the
property, except in the manner provided
by law. (Maneclang vs. Baun, 208 SCRA
179)
May the court authorize sale, mortgage
or other encumbrance of estate to pay
debts and legacies in other countries?
(Sec. 5)
When it appears from records and
proceedings of a probate court of
another country that the estate of the
deceased in foreign country is not
sufficient to pay debts and expenses.

Special

117
MEMORY AID
Application for authority to sell,
mortgage or encumber property of the
estate may be denied by the court if:
1.
the disposition is not for
any of the reasons specified by
the rules; OR
2.
under Section 3 Rule 89,
any person interested in the
estate gives a bond conditioned
to pay the debts, expenses of
administration and legacies.
RULE 90
DISTRIBUTION AND PARTITION OF THE
ESTATE
Liquidation means the determination of
all assets of the estate and payment of
all debts and expenses.
When order for distribution of residue
made (Sec.1)
RULE: ORDER OF DISTRIBUTION shall be
made AFTER payments of all debts,
funeral
expenses,
expenses
for
administration, allowance of widow and
inheritance tax is effected.
In these proceedings, the court shall:
1.
collate;
2.
determine heirs; and
3.
determine the share of
each heir.
A separate action for the declaration of
heirs is not necessary.
When is title vested?
From FINALITY of order of distribution.
Only after partition is approved and not
before, the court may order the delivery
to the heirs of their respective shares
except when the heir file a bond
conditioned to pay the debts.
An order which determines the
distributive shares of heirs is appealable.
If not appealed, it becomes final.
IN
REMEDIAL LAW
The probate court lose jurisdiction over

the settlement proceedings only upon
payment of all debts and expenses of the
obligor and delivery of the entire estate
to all the heirs. (Timbol vs. Cano, 1
SCRA 1271)
CONDITIONS
PRECEDENT
to
be
complied with for the issuance of an
order of distribution
1. Showing that the executor,
administrator
or
person
interested in the estate applied
for such; and
2. The requirements as to notice
and
hearing
upon
such
application have been fulfilled.
PROHIBITION AGAINST INTERFERENCE
BY OTHER COURTS
As long as the order of distribution of
the estate has not been complied with,
the probate
probate proceedings cannot be deemed
closed and terminated, because a
judicial partition is not final and
conclusive and does not prevent the
heirs from bringing an action to obtain
his share, provided the prescriptive
period therefore has not elapsed. The
better practice, however, for the heir
who has not received his share, is to
demand his share through proper motion
in the same probate or administrative
proceedings, or for the reopening of the
probate or administrative proceedings if
it had already been closed, and not
through an independent action, which
would be tried by another court or judge
which may thus reverse a decision or
order of the probate or intestate court
already final and executed and reshuffle properties long ago distributed
and disposed of. (Timbol vs. Cano,
supra).
RULE 91
ESCHEATS
3 INSTANCES of ESCHEATS
1. When a person dies intestate
leaving no heir but leaving

Special

118
MEMORY AID
property in the Philippines
(Section 1)
2. REVERSION PROCEEDINGS Sale
in violation of the Constitutional
provision
3. Unclaimed Balance Act under
Banking Laws
What is the basis of the states right to
receive property in escheat?
Order of succession under the Civil Code,
the STATE is the last heir of the
decedent.
Who files?
Solicitor General or his representative in
behalf of the Philippines.
Where to file?
RTC of last residence or of location of
his estate in the Philippines if he is a
non-resident.
If petition is sufficient in FORM and
SUBSTANCE the court shall:
1.
Make an ORDER OF
HEARING hearing shall not be
more than 6 MONTHS AFTER
ENTRY OF ORDER.
2.
Direct publication of the
copy of order at least once a
week for 6 CONSECUTIVE WEEKS.
REQUISITES
1. publication of the order
2. person died intestate
3. he is seized of real/personal
property in the Philippines
4. he left no heir or person entitled
to such property
5. there is no sufficient cause to
the contrary
The court, at the instance of an
interested party, or on its own motion,
may order the establishment of a
PERMANENT TRUST, so that only the
income from the property shall be used.
CLAIM BY PERSONS ENTITLED TO THE
ESTATE (Sec. 4)
Who?
IN
REMEDIAL LAW
By devisee, legatee, heir, widow/er, or

other person entitled thereto)
When to file?
- Within 5 YEARS FROM DATE OF
JUDGEMENT otherwise forever barred.
OTHER ACTIONS FOR ESCHEATS (Sec. 5)
actions for reversion of
property alienated in violation of
Constitution or any statute.
These shall be governed
by Rule 91. HOWEVER, the
action must be instituted in the
province where the land lies in
whole or in part.
Period: Within 5 years from the date of
judgment; (under ART. 1014 of the Civil
Code, the 5-year period is reckoned from
the date the property was delivered to
the State and further provides that if the
property had been sold, the municipality
or city shall be accountable only for such
part of the proceeds as may not have
been lawfully spent.)
By whom: person of interest
TO WHOM WILL THE PROPERTY
ESCHEATED BE ASSIGNED: (Sec. 3)
1. if personal property, in the
municipality or city where he
last resided.
2. if real property, where the
property is situated.
3. if deceased never resided in the
Philippines, where the property
may be found.
Can court convert escheat proceedings
into ordinary special proceedings or
vice-versa?
NO. This is not allowed for the two
actions have different requirements in
acquiring
jurisdiction.
In
special
proceedings, publication is once a week
for 3 weeks while in escheat, once a
week for 6 weeks.
RULE 92
GUARDIANSHIP

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119
MEMORY AID
Guardianship of minors is now

governed
by
the
Rule
on
Guardianship of Minors (A.M. No.
03-02-05-SC) which took effect on
May 1, 2003. While guardianship of
incompetents is still governed by
the provisions of the Rules of
Court on Guardianship (Rule 92 to
Rule 97).
MINOR
1.
any relative; or
other person on
behalf of a minor;
or
3. the
minor
himself if 14 years
of age or over; or
2.
4.
5.
the Secretary of
Social Welfare and
Development AND
by the Secretary of
Health in case of an
insane minor who
needs
to
be
hospitalized. (Sec.
2 AM 03-02-05-SC)
any one
interested in the
estate of a nonresident
incompetent
(Sec.12)
INCOMPETENT
1.
2.
3.
any relative;
friend; or
other person on
behalf
of
the
resident incompetent who has no
parents or lawful
guardian; or
4.
the Director of
Health in favor of
an insane person
who
should
be
hospitalized or in
favor of an isolated
leper. (Sec. 1)
5. any one interested

in the estate of a
non-resident
incompetent (Sec.
6)
IN
REMEDIAL LAW
2.
Limited - over the
property only
B. According to constitution:
1. general guardian
2. legal guardian
guardian ad litem
INCOMPETENT includes: (Sec. 2)
1. those suffering from penalty of
civil interdiction
2. hospitalized lepers
3. prodigals
4. deaf and dumb who are unable
to read and write
5. those of unsound mind though
they have lucid intervals
6. persons not of unsound mind but
by reason of age, disease, weak
mind and other similar causes
cannot take care of themselves
or manage their property.
RULE 93
APPOINTMENT OF GUARDIANS
Who may petition for appointment of
guardian?
The father and the mother shall jointly
exercise legal guardianship over the
person and property of their minor
without the necessity of a court
appointment. In such case, this Rule
shall be suppletory to the provisions of
the Family Code on Guardianship.
Contents of Petition
Jurisdiction:
Incompetents RTC of his
residence or where his property is
located in case of non-residents
(Sec. 1)
Minor Family Court of his
residence or where his property is
located in case of non-resident (Sec.
3, AM 03-02-08)
KINDS OF GUARDIANS
A. According to scope:
1.
General - over the
person of the
ward or over his property
MINOR
a)
b)
c)
d)
the
jurisdictional
facts;
the name, age
and residence
of
the
prospective
ward;
the
ground
rendering
the
appointment
necessary
or
convenient;
the death of
INCOMPETENT
a)
b)
c)
d)
the
jurisdictional
facts;
the minority or
incompetency
rendering
the
appointment
necessary
or
convenient;
the
probable
value
and
character of his
estate;
the
names,

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120
MEMORY AID
e)
f)
g)
h)
the parents of
the minor or
the
termination,
deprivation or
suspension
of
their parental
authority;
the remarriage
of the minors
surviving
parent;
the
names,
ages,
and
residences
of
relative within
the 4th civil
degree
of
minor, and of
persons having
him in their
care
and
custody;
the
probable
value,
character and
location of the
property of the
minor; and
the name, age
and residence
of the person
for
whom
letters
of
guardianship
are prayed.
e)
f)
ages,
and
residences
of
the relatives of
the minor or
incompetent,
and of the
persons having
him in their
care;
the name of the
person
for
whom letters of
guardianship.
(Sec. 2 Rule 93)
The petition involving minors is

required
to
be
VERIFIED
and
accompanied by certification against
FORUM SHOPPING while that involving
incompetent must be verified only.
HOWEVER, no defect in the petition or
verification shall render void the
issuance of letters of guardianship.
There
is
NO
requirement
for
PUBLICATION, only notice EXCEPT in
case of nonresident minor/incompetent.
HOWEVER, service of NOTICE upon minor
if 14 years of age or over, or upon
incompetent
is
mandatory
and
jurisdictional.
IN
REMEDIAL LAW
If the person is insane, service of notice

upon the Director of Hospital where
hospitalized is sufficient.
OPPOSITION TO PETITION (Sec. 4)
Grounds
1. majority of alleged minor
2. competency
of
alleged
incompetent
3. unsuitability of the persons for
whom letters are prayed
Procedure
a.
filing of petition
b.
court shall set the case for
hearing
c.
cause notices to be served to
the persons mentioned in the
petition, including minor, if 14 years
and above
d.
court shall receive evidence
e. declaration of the propriety of
the petition
f.
issue letters of guardianship
BONDS OF GUARDIANS
Before an appointed guardian enters
upon the execution of his trust, he shall
give a BOND (Sec. 1 Rule 94).
SELLING AND ENCUMBERING PROPERTY
OF WARD:
A. Grounds
1. when income of estate is
insufficient to maintain ward
and family or to maintain and
educate ward when a minor; or
2. when it appears that it is for
the benefit of the ward.
B. Requirements
1. petition must be verified;
2. notice must be given to the
next of kin; and
3. hearing so that they may show
cause why petition should not
be granted.
Notice to next of kin and interested

persons is JURISDICTIONAL.
Next of kin - pertains to those relatives
who are entitled to share in the estate
of the ward under the Law on Intestate

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121
MEMORY AID
succession including those who inherit
per stirpes or by right of representation.
Sale of the wards realty by the guardian
without authority from the court is VOID.
Under the law, a parent acting merely as
legal administrator of the property of
his/her children, does NOT have the
power to dispose of, or alienate, the
property of said minor without judicial
approval (Lindain vs. CA, GR No. 95305,
Aug. 20, 1992).
The Order of Sale must specify the
grounds.
C. Duration of the order for sale and

encumbrance of property - Within 1
year from the granting of the order.
It is presumed that if the property
was not sold within 1 year, the ward
has sufficient income.
The authority to sell or encumber shall
not extend beyond 1 year unless
renewed by the court.
GENERAL POWERS AND DUTIES OF
GUARDIANS
1. have the care and custody of the
person of the ward, and the
management of his estate, or
the management of the estate
only, as the case may be;
2. pay the debts of the ward;
3. settle accounts, collect debts
and appear in actions for ward;
4. manage the estate of the ward
frugally, and apply the proceeds
to maintenance of the ward;
5. render
verified
inventory
verified within 3 MONTHS after
his appointment and annually
thereafter upon application of
interested persons; and
6. render to court for its approval
an accounting of the property
for 1 YEAR from his appointment
& every year thereafter.
TERMINATION OF GUARDIANSHIP
IN
REMEDIAL LAW
Grounds for termination

MINOR
INCOMPETENT
1. The ward has
1. competency
come of age; or
2. has died
of the ward has

been judicially
determined
2. guardianship
is no longer
necessary
B. Grounds for removal of a

guardian:
1. insanity;
2. incapability or unsuitability to
discharge functions;
3. wastage or mismanagement of
the property of the ward; and
4. failure to render an account or
make a return within 30 days
after it was due.
SALIENT FEATURES and SPECIAL RULES
FOUND IN THE RULE ON GUARDIANSHIP
OF MINORS (A.M. No. 03-02-05-SC,
effective May 1, 2003)
Grounds for Petition (Sec. 4)
1.
Continued Absence, or
Incapacity or Death of his
parents; (AID)
2.
Suspension, Termination
or Deprivation of parental
authority; (STD)
3.
Remarriage
of
his
surviving parent, if the latter is
found unsuitable to exercise
parental authority;
4.
When the best interest
of the minor so requires.
A. Qualifications of Guardians (Sec. 5)

1.
Moral character
2.
Physical, mental and
psychological condition
3.
Financial status
4.
Relationship of trust
with the minor
5.
Availability to exercise
the powers and duties of a
guardian for the full period of
guardianship
6.
Lack of conflict of
interest with the minor

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122
MEMORY AID
7.
Ability to manage the
property of the minor.
B. Who may be appointed guardian of

the person or property, or both, of
a minor (Sec.6)
In default of parents or a court
appointed guardian, the court may
the following observing as far as,
practicable,
the
ORDER
OF
PREFERENCE:
1.
the
SURVIVING
GRANDPARENT and in case
several grandparents survive, the
court shall select any of them
taking into account all relevant
considerations;
2.
the OLDEST BROTHER OR
SISTER of the minor over twentyone years of age, unless unfit or
disqualified;
3.
the ACTUAL CUSTODIAN
of the minor over twenty-one
years of age, unless unfit or
disqualified; and
4.
any OTHER PERSON, who
in the sound discretion of the
court would serve the best
interests of the minor.
C. Case Study Report (Sec. 9)

The court shall order a social worker
to conduct a case study of the minor
and all prospective guardians and
submit report and recommendation
to the court for its guidance before
the scheduled hearing.
D. Bond of parents as guardians of

property of minor (Sec. 16)
If the market value of the property
on the annual income of the child
exceeds
P50,000,
the
parent
concerned shall furnish a bond in
such amount as the court may
determine, but in no case less than
10% of the value of such property or
income,
to
guarantee
the
performance of the obligations
prescribed for general guardians.
A verified petition for approval of the
bond shall be filed in the Family Court of
the place where the child resides or, if
IN
REMEDIAL LAW
the child resides in a foreign country, in

the Family court of the place where the
property or any part thereof is situated.
The petition shall be docketed as a
summary special proceeding in which all
incidents and issues regarding the
performance of the obligations of a
general guardian shall be heard and
resolved.
REMOVAL
OR
RESIGNATION
OF
GUARDIAN (Sec. 24)
No motion for removal or resignation
shall be granted unless the guardian has
submitted the proper accounting of the
property of the ward and the court has
approved the same.
Grounds
for
termination
of
guardianship (Sec. 25).
The court motu propio or upon verified
motion of any person allowed to file a
petition for guardianship may terminate
the guardianship on the ground that the
ward has COME OF AGE or has DIED. The
guardian shall notify the court of such
fact within 10 days of its occurrence.
RULE 98
TRUSTEES
Jurisdiction: RTC in which the will was
allowed, if it be a will allowed in the
Philippines, otherwise by the RTC of the
province in which the property, or some
portion thereof, affected by the trust is
situated.
A trustee is necessary to carry into
effect:
a) A will where the testator
omitted to appoint a trustee in
the Philippines (Testamentary
Trust); and
b) Other written instruments where
the trustee therein declines,
resigns, dies, or is removed
before accomplishment of trust
(Contractual Trust).
No persons succeeding to a trust as
executor or administrator of a formal

Special

123
MEMORY AID
trustee shall be required to accept such
trust.
TRUSTEE APPOINTED ABROAD (Sec. 4)
When land in the Philippines is held in
trust for a resident by a trustee who
derives his authority from abroad, such
trustee must petition the RTC where the
land is situated, otherwise, the trust will
be vacant and a new trustee will be
appointed.
When a trust is created abroad for
property in the Philippines, judicial
approval is still needed though trustor is
alive.
BOND OF TRUSTEES (Sec. 5)
Neglect of trustees to file a bond will be
interpreted by the court as resignation
or decline to accept the trust.
However, he may be exempted from
bond when requested by:
a.
testator;
b.
All persons beneficially
interested in the trust.
However, the court may cancel such
exemption anytime.
REMOVAL OR RESIGNATION OF THE
TRUSTEE (Sec. 8)
REQUISITES
1.
Petition filed by parties
beneficially interested;
2.
Notice to trustee; and
3.
Hearing.
Who may petition?
Parties beneficially interested.
Grounds
1.
essential in the interest
of petitioners
2.
insanity
3.
incapability
of
discharging trustee
4.
unsuitability
Rules on Sale and Encumbrance of Trust
Estate shall conform as nearly as may be
to the provisions on Sale and
Encumbrance by Guardians.
ADOPTION AND CUSTODY OF MINORS
IN
REMEDIAL LAW
The provisions of the Rules of Court

on Adoption have been amended by the
Domestic Adoption Act of 1998 and
the Intercountry Adoption Act of 1995
EXCEPT: Secs 6 & 7 of Rule 99
Effective August 22, 2002, there is a
new Rule on Adoption.
NATURE AND CONCEPT OF ADOPTION
Adoption is a juridical act, a proceeding
IN REM, which creates between two
persons a relationship similar to that
which results from legitimate paternity
and filiation.
Only an adoption made through the
court, or in pursuance with the
procedure laid down under Rule on
Adoption is valid in this jurisdiction.
PURPOSE OF ADOPTION
The promotion of the welfare of the
child and the enhancement of his
opportunities for a useful and happy life,
and every intendment is sustained to
promote that objective.
WHAT DOES THE COURT DETERMINE IN
ADOPTION CASES
1.
capacity of the adopters
2.
whether the adoption
would be the best interest of the
child
Adoption is strictly personal between the
adopter and the adopted. (Teofico vs.
Del Val)
RULES ON ADOPTION (Secs. 1-25)
DOMESTIC ADOPTION
WHO MAY ADOPT
1. Any Filipino Citizen a) of legal age;
b) in possession of full civil capacity
and legal rights;
c) of good moral character;
d) has not been convicted of any
crime involving moral turpitude;
e) emotionally and psychologically
capable of caring for children;
f) in a position to support and care
for his/her children in keeping

Special

124
MEMORY AID
with the means of the family;
and
g) at least 16 YEARS older than the
adoptee.
2. Any alien possessing the same
qualifications as above; provided:
a) That
his/her
country
has
diplomatic relations with the
PHILIPPINES;
b) That he/she has been living in
the Philippines for at least 3
CONTINUOUS YEARS prior to the
filing of the application for
adoption;
c) Maintains residence until the
adoption decree is entered;
d) Certified to have legal capacity
to adopt, by his/her country;
and
e) That his/her government allows
the adoptee to enter his/her
country as his/her adopted
son/daughter.
3. The guardian with respect to the
ward after the termination of the
guardianship and clearance of his
financial accountabilities.
The requirement of 16 YEARS difference
between the adopter and the adoptee is
NOT applicable if the adopter is:
1. the biological parent of the adoptee
2. the spouse of the adoptees parent
The requirement on residency and
certification of aliens qualification to
adopt may be WAIVED for the following:
1.
The adoptee is a former
Filipino citizen who seeks to
adopt a relative within the 4th
degree of consanguinity or
affinity.
2.
One who seeks to adopt
the legitimate son/daughter of
his/her Filipino spouse.
3.
One who is married to a
Filipino citizen and seeks to
adopt jointly with his/her spouse
a relative within the 4th degree
of consanguinity or affinity of
the Filipino spouse.
IN
REMEDIAL LAW
WHO MAY BE ADOPTED

1.
Any
person
below
eighteen (18) years of age who
has been judicially declared
available for adoption OR
voluntarily committed to DSWD.
2.
The legitimate child of
one spouse by the other spouse.
3.
An illegitimate child by a
qualified adopter to raise the
status to that of legitimacy.
4.
A person of legal age
regardless of civil status, if,
prior to the adoption, said
person has been consistently
considered and treated by the
adopters as their own child since
minority.
5.
A child whose adoption
has been previously rescinded.
6.
A child whose biological
or adoptive parents have died.
7.
A child not otherwise
disqualified by law or these
rules.
GENERAL RULE: Husband and wife shall
jointly adopt.
EXCEPTIONS:
1.
If one spouse seeks to
adopt
the
legitimate
son/daughter of the other.
2.
If one spouse seeks to
adopt his/her own illegitimate
son/daughter.
3.
If the spouses are legally
separated from each other.
VENUE (Sec.6)
Family Court where the prospective
adoptive parents reside.
Petition shall be verified and specifically
state at the heading of the initiatory
pleading whether the petition contains
an application for a change of name,
rectification
of
simulated
birth,
voluntary or involuntary commitment of
children, or declaration of child as
abandoned, dependent or neglected.
A certification of non-forum shopping
shall be included pursuant to Section 5,
Rule 7 of the 1997 Rules of Civil
Procedure.

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125
MEMORY AID
PROCEDURE
A. ORDER OF HEARING (Sec.12)
- must be published at least once
a week for 3 CONSECUTIVE WKS.
- at the discretion of the court,
copies of the order of hearing
shall be furnished to the office
of the Sol.Gen. through the
provincial or city prosecutor, the
DSWD and the biological parents
of the adoptee, IF KNOWN.
- if a change in the name of the
adoptee is prayed for in the
petition, notice to the Sol. Gen.
Shall be MANDATORY.
B. CHILD & HOME STUDY REPORTS
(Sec.13)
- social worker verifies with the
Civil Registry the real identity
and the name of adoptee and
the fact that he is legally
available for adoption.
social
worker
may
make
recommendations to the court if
he finds some grounds to deny
the petition.
C. HEARING (sec.14)
- to be held within 6 MONTHS from
the date of issuance of the order
EXCEPT: in case of APPLICATION FOR
CHANGE OF NAME which hearing
must not be within 4 MONTHS after
LAST PUBLICATION nor within 30
DAYS prior to election.
the petitioner and the
adoptee must personally appear
and the former must testify in
court.
D. SUPERVISED TRIAL CUSTODY (STC)
(Sec.15)
Before issuance of decree of
adoption the court shall give the
adopter trial custody of the adoptee
for at least 6 MONTHS.
Reason: So the parties will adjust
psychologically and emotionally to
each other and establish a bonding
relationship.
Court may reduce or exempt parties
from STC.
IN
REMEDIAL LAW
GENERAL RULE:
Alien adopter must complete the 6
MONTHS STC.
EXCEPTION:
Same as Exemptions from requirements
of residency and certification.
E. DECREE OF ADOPTION
If issued, this will take effect as of
the date of filing of the original
petition.
In case of change of name, the
decree shall be submitted to the
Civil Registrar where the court
issuing the same is situated.
An amended birth certificate shall
be issued. The original birth
certificate
shall
be
stamped
cancelled and shall be sealed in
the Civil Registry records.
The new birth certificate to be issued
to the adoptee shall not bear any
notation that it is an amended issue.
EFFECTS OF ADOPTION
1.
adopter will exercise
parental authority.
2.
all legal ties between
biological parents and the
adoptee shall be severed, except
when biological parent is spouse
of adopter.
3.
adoptee
shall
be
considered legitimate child of
adopter for all intents and
purposes.
4.
adopters
shall
have
reciprocal rights of succession
without
distinction
from
legitimate filiation.
All hearings and
confidential. (Sec.18)
records
are
INTER COUNTRY ADOPTION

(Secs. 26-32)
Where to file Petition?
- A verified petition to adopt a Filipino
child may be filed by a foreign

Special

126
MEMORY AID
national
or
Filipino
citizen
permanently residing abroad with
the Family Court having jurisdiction
over the place where the child
resides or may be found.
It may be filed directly with the
Inter-Country Adoption Board.
WHO MAY ADOPT

1.
any alien or Filipino
citizen permanently residing
abroad who is at least twentyseven (27) years of age;
2.
other requirements same
as with RA 8552.
WHO MAY BE ADOPTED
Only a legally free child may be the
subject of inter-country adoption.
A child under the Inter-Country
Adoption Act is defined as any person
below fifteen (15) years of age.
RESCISSION AND REVOCATION OF
ADOPTION
Under the Domestic Adoption Act of
1998, the ADOPTER CAN NO LONGER
REVOKE the adoption, he can merely
disinherit the adoptee in accordance
with the provisions of the Civil Code.
In revocation, it relates only as to the
date of the judgment. Hence in
revocation, vested rights prior to
rescission should be respected.
Who files?
1.
ADOPTEE
a) over 18 years of age or
b) if minor with assistance
of DSWD
2.
GUARDIAN if over 18 but
incapacitated or COUNSEL
Grounds
1.
repeated
physical
violence
and
verbal
maltreatment by the adopter
despite
having
undergone
counseling;
2.
attempt on the life of
the adopter;
IN
REMEDIAL LAW
3.
sexual
assault
or
violence; or
4.
abandonment or failure
to
comply
with
parental
obligations.
Venue
FAMILY COURT of the city or province
where the adoptee resides. (Sec. 20)
Period within which to file VERIFIED
petition (Sec. 21)
5 YEARS from reaching age of majority or
from recovery of incompetency.
Adverse party shall file his ANSWER
within 15 days from receipt of order of
court requiring him to answer. (Sec. 22)
EFFECTS OF JUDGMENT OF RESCISSION
1.
parental authority or
legal custody will be restored
2.
reciprocal
rights
of
adoptee and adopter will be
extinguished
3.
vested rights required
prior to judicial rescission shall
be respected
4.
adoptee shall use the
name stated in his original borth
or foundling certificate
5.
civil
registrar
will
reinstate his original birth or
foundling certificate
Unlike in revocation of guardianship,
revocation of adoption is a separate
proceeding from the adoption.
RULE 99, SECTIONS 6 & 7
Sections 6 and 7 of Rule 99 of the
Rules of Court referring to Custody of
Minors are still valid provisions.
Rule 99, Section 6. Proceedings as to
child whose parents are separated.
The question as to the care and custody
and control of a child or children of their
marriage is brought before a Regional
Trial Court by Petition or as an incident
to any other proceedings.
When parents considered unfit to take
charge of the child
1. by reason of moral depravity

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127
MEMORY AID
2. habitual drunkenness
3. incapacity
4. poverty
ORDER OF PREFERENCE in case the
parents are unfit
1.
Parental/Maternal
grandparents
2.
Childs oldest brother or
sister
3.
Some
reputable
or
discreet person
4.
Any suitable asylum,
childrens home or benevolent
society.
No child under seven (7) years of age
shall be separated from its mother,
unless the court fins there are
compelling reasons therefor.
Rule 99, Section 7. Custody of Vagrant
or Abused Child
Jurisdiction and Venue
Family Courts of the territory where the
petitioner resides.
Grounds
1.
Parents of the minor
are dead;
2.
Parents
have
abandoned the child by reason of
long absence or legal or physical
impossibility;
3.
Parents
cannot
support the child;
4.
Parents treat the
child with excessive harshness;
5.
Parents give the
child corrupting orders, counsels
or examples;
6.
Parents cause or
allow the child to engage in
begging;
7.
Parents cause or
allow child to commit offenses
against the law.
PROCEDURE
1.
Filing of Petition by a
reputable
resident
of
the
province
2.
Show Cause Order
directed to parents or in case
IN
REMEDIAL LAW
the parents are dead or cannot

be found, requiring the fiscal of
the province to show cause, why
the child should not be taken
from its parents, if living
3.
Hearing and Order
4.
Service of Judgment
upon the Civil Registrar of the
city or municipality where the
court issuing the same is
situated.
RULE 101
PROCEEDINGS FOR HOSPITALIZATION
OF INSANE PERSONS
Venue
RTC of province where the person
alleged to be insane is found.
Who files?
Director of Health with assistance of city
or provincial fiscal.
Requisites
1.
Director of Health is of
the
opinion
that
the
commitment of the person
alleged to be insane is for
PUBLIC WELFARE or for THE
WELFARE of said person
2.
Such person or one
having charge of him is opposed
or his being taken to hospital or
asylum
DISCHARGE OF INSANE (Sec. 4)
Director of Health may file this petition
when he is of the opinion that the person
is permanently or temporarily cured or
may be released without danger
RULE 102
HABEAS CORPUS
Habeas corpus extends to: (Sec.1)
1. cases of illegal confinement or
detention by which a person is
deprived of his liberty; and

Special

128
MEMORY AID
2. cases by which the rightful custody of
the person is withheld from the
person entitled thereto
The restraint must be actual,
effective and material. The person need
not actually be confined as long as
freedom of action is limited. (Moncupa
vs. Enrile, GR No. 61107, Apr. 26, 1983)
Writ of Habeas Corpus - a command
directed to the person detaining
another, requiring him to produce the
body of the person detained at a
designated time and place, and to
produce and to show cause and to
explain the reason for detention.
PURPOSE
The essential object and purpose of the
writ of habeas corpus is to inquire into
all manner of involuntary restraint as
distinguished from voluntary, and to
relieve a person therefrom if such
restraint is illegal. (Moncupa vs. Enrile,
supra)
And any further rights of the parties are
left untouched by decision on the writ,
whose principal purpose is to set the
individual at liberty. (Villavicencio vs.
Lukban)
The privilege of writ is so sacred that,
according to our CONSTITUTION, it shall
not be suspended except in cases of
invasion or rebellion when public
security requires it (Art. III, Sec. 15).
IN CASES OF ILLEGAL CONFINEMENT OR
DETENTION
GENERAL RULE: The release, whether
permanent or temporary, of a detained
person renders the petition for habeas
corpus moot and academic.
EXCEPTION: When there are restraints
attached to his release which precludes
freedom of action, in which case the
court can still inquire into the nature of
his involuntary restraint. (Villavicencio
vs. Lukban)
Whether the State can reserve the
power to re-arrest a person for an
IN
REMEDIAL LAW
offense after a court of competent

jurisdiction has absolved him of the
offense.
We hold that such a reservation is
repugnant to the government of laws
and not of men principle. Under this
principle, the moment a person is
acquitted on a criminal charge he can no
longer be detained or re-arrested for the
same offense. (Moncupa vs. Enrile)
GROUNDS FOR RELIEF
1. deprivation of any fundamental
or constitutional right
2. lack of jurisdiction of the court
to impose the sentence
3. excessive penalty
Requisites for the issuance of the Writ
in cases by which the rightful custody
of the person of a minor is withheld
from the person entitled thereto
1.
that the petitioner has
the right to the custody over the
minor
2.
that the rightful custody
of the minor is being withheld
from the petitioner by the
respondent
3.
that it is to the best
interest of the minor concerned
to be in the custody of the
petitioner and not that of
respondent. (Sombong vs. CA,
January 31, 1996)
Habeas Corpus can never be a
substitute for appeal.
Whether the petition for the writ of
habeas corpus may be properly filed
together with the petition for
certiorari and mandamus
The Court ruled that the writs of habeas
corpus and certiorari may be ancilliary
to each other where necessary to give
effect to the supervisory powers of the
higher courts. A writ of habeas corpus
reaches the body and the jurisdictional
matters, but not the record. A writ of
certiorari reaches the record but not the
body. Hence, a writ of habeas corpus
may be used with the writ of certiorari
for the purpose of review. However,

Special

129
MEMORY AID
habeas corpus does not lie where the
petitioner has the remedy of appeal or
certiorari because it will not be
permitted to perform the functions of a
writ of error or appeal for the purpose of
reviewing mere errors or irregularities in
the proceedings of a court having
jurisdiction over the person and the
subject matter. (Galvez, et al. vs. CA,
et al., 237 SCRA 685).
The person on bail is not entitled to
habeas corpus because his detention is
legal and technical.
Does voluntary restraint constitute
habeas corpus?
As a GENERAL RULE, NO. EXCEPT when a
person restrained is a minor and the
petitioner is the father or mother or
guardian or a person having custody of
the minor.
Voluntariness is viewed from the
point of view of the person entitled to
custody.
Supervening Events May Bar Release
Even if the arrest of a person is illegal,
supervening events may bar release of
discharge from custody. What is to be
inquired into is the legality of detention
as of, at the earliest, the filing of the
application for the writ of habeas
corpus. (Velasco vs. CA, July 7,1995).
IN
REMEDIAL LAW
d. service of writ by sheriff or other

officer;
e. return; and
f. hearing on return.
To whom writ directed and what to
require. (Sec.6)
Directed to officer and commands him
to:
1.
have the body of person
before the court; and
2.
show cause of the
imprisonment or restraint.
How writ is executed and returned
(Sec.8)
Officer shall:
1. Convey the person so imprisoned
before the judge, unless from
sickness or infirmity, such person
cannot, without danger be
brought before the court.
2. Make the return of the writ
together with the day and the
cause of caption or restraint.
Defect of form (Sec.9)
NO writ can be disobeyed for defect in
form IF it sufficiently states:
1. person in whose custody or
under whose restraint the party
imprisoned or restraint is held,
and
2. court or judge before whom he is
to be brought.
Who may grant the petition (Sec.2)

1. SC or any member thereon
2. CA or any member thereof
3. RTC or any judge thereof
4. MTC - in the absence of RTC
judges
When the return evidence, and when

only a plea (Sec.3)
If a prisoner is in custody under a
warrant of commitment in pursuance of
law or under a judicial order, the return
shall be considered PRIMA FACIE
EVIDENCE OF THE CAUSE OF RESTRAINT,
however it shall only be plea of the
facts set forth if restraint is by private
authority.
Procedure for grant of writ

a. verified petition signed by the
party for whose relief it is
intended; some other person in
his behalf;
b. allowance of writ;
c. command officer to produce;
When prisoner discharged if no appeal.

(Sec.15)
If one is unlawfully imprisoned, court
shall order his discharge but such
discharge shall not be effective until a
copy of the order has been served on the
office or person detaining the prisoner.
Preliminary Citation - issued by the

court to show cause whether or not the
writ should be issued

Special

130
MEMORY AID
If person detaining him does not appeal,
the prisoner shall be released.
When prisoner may be removed from
one custody to another (Sec.18)
1. By legal process
2. Prisoner is delivered to an
inferior officer to carry to jail
3. By order of proper court or judge
be removed from one place to
another within the Phil. for trial.
4. In case of fire, epidemic,
insurrection or other necessity or
public calamity.
When does court acquire jurisdiction
over person of respondent?
The writ itself plays the role as summon
in ordinary actions; court acquires
jurisdiction over the person of the
respondent BY MERE SERVICE OF WRIT.
APPEAL IN HABEAS CORPUS CASES
The appeal in habeas corpus cases may
be taken in the name of the person
detained or of the officer or person
detaining him.
An appeal in habeas corpus cases shall
be perfected by filing with the clerk of
court or the judge, within 48 hours from
notice of judgment, a notice of appeal.
RULE ON CUSTODY OF MINORS AND
WRIT OF HABEAS CORPUS
IN RELATION TO THE CUSTODY OF
MINORS (A.M. No. 03-04-04-SC)
Who may file Petition? (Sec.3)
- A verified petition for the rightful
custody of a minor may be filed by any
person claiming such right.
Where to file petition? (Sec.3)
- Family Court of the province or city
where the petitioner resides or where
the minor may be found.
Provisional Order Awarding Custody
(Sec.13)
IN
REMEDIAL LAW
As far as practicable, the following order

of preference shall be observed in the
award of custody:
a. Both parents jointly;
b. Either parent, taking into
account
all
relevant
considerations, especially the
choice of the minor over seven
years of age and of sufficient
discernment unless the parent
chosen unfit;
c. The grandparent or if there are
several
grandparents,
grandparent chosen by the minor
over seven years of age and of
sufficient discernment, unless
the grandparent chosen is unfit
or disqualified;
d. The eldest brother or sister over
twenty years of age unless he or
she is unfit or disqualified;
e. The actual custodian of the
minor over twenty years of age,
unless the former is unfit or
disqualified; or
f. Any other person or institution
the court may deem suitable to
provide
proper
care
and
guidance for the minor.
Temporary Visitation Rights (Sec.15)
The court shall provide in its order
awarding provisional custody appropriate
visitation rights to the non- custodial
parent or parents, unless the court finds
said parent or parents unfit or
disqualified.
Petition for Writ of Habeas Corpus
(Sec. 20)
shall be filed with the

Family court.
shall be enforceable
within its judicial region to
which the Family Court belongs.
the
petition
may
however be filed with the
regular court in the absence of
the presiding judge of three
Family Court, provided however
that the regular court shall refer
the case to the family Court as
soon as its presiding judge
returns duty.

Special

131
MEMORY AID
petition may also be

filed with the SC, CA, or with
any of its members and, if so
granted the writ shall be
enforceable anywhere in the
Philippines. The writ may be
made returnable to
a Family court or to any regular
court within the region where
the petitioner resides or where
the minor may be found for
hearing and decision on the
merits.
RULE 103
CHANGE OF NAME
Venue (Sec. 1)
RTC of the province in which he resides.
Contents of Petition (Sec.2)
It shall set forth:
1.
that petitioner is
a bonafide resident of the
province where petition is filed
for at least three years prior to
the date of filing;
2.
all names by
which petitioner is known;
3.
cause for change
of name;
4.
name asked for.
Petition shall be signed and verified by
person desiring his name changed or
some other person in his behalf.
Requirement of verification is formal,
NOT jurisdictional requisite. It is not a
ground for dismissing petition.
Jurisdictional Requirements
1.
the verified petition
should be published for three
successive
weeks
in
some
newspaper of general circulation
in the province;
2.
that both the title
and caption of the petition and
its body shall recite:
a) name /names or aliases of
the applicant;
IN
REMEDIAL LAW
b) cause for which the change

of name is sought;
c) new name asked for. (Secan
Kok vs. Republic, 52 SCRA
322).
Hearing - shall not be within 30 days
prior to an election nor within 4 MONTHS
after the LAST PUBLICATION of notice of
hearing.
Effects of Discrepancy in the Petition
and Published Order
The defect in the petition and the order,
as to the spelling of the name of the
petitioner, is substantial, because it did
not correctly identify the party to said
proceedings.
Grounds for change of name
1.
name
is
ridiculous, tainted with dishonor
and extremely difficult to write
or pronounce;
2.
consequence of a
change
of
status;
e.g.
legitimated child;
3.
necessity
to
avoid confusion;
4.
having
continuously used and been
known since childhood by a
Filipino name, unaware of her
alien parentage;
5.
a sincere desire
to adopt a Filipino name to erase
signs of former alienage, all in
good
faith
and
without
prejudicing anybody.
TITLE OF PETITION MUST CONTAINED
THE FOLLOWNG
1.
Official
name (birth certificate) be very
particular with the spelling
because it may avoid or annul
the
proceedings;
it
is
jurisdictional;
2.
all
aliases;
and
3.
name asked
for.

Special

132
MEMORY AID
All the names or aliases must appear in
the title or caption of the petition,
because the reader usually merely
glances at the title of the petition and
may only proceed to read the entire
petition if the title is of interest to him.
(Secan Kok vs. Republic,supra).
A decree of adoption grants the adoptee
the right to use the adopters surname
but not to change the formers first
name which relief must be sought in a
discrete petition under Rule 103.
(Republic vs. Hernandez, GR NO.
117209, February 9, 1996).
For administrative procedure for

Change of Name, refer to Administrative
Order 1, Series of 2004. It only applies
to:
1.
clerical errors; and
2.
innocuous errors.
RULE 107
ABSENTEES
ABSENTEE
CONSEQUENCE
0-2 years
--------
2 years to 7 years
Petition for
declaration of
absence may be filed
Considered dead for
all intents and
purposes except for
purposes of
succession
For purposes of
marriage: 4 years
continuous absence
shall be sufficient for
present spouse to
remarry, 2 years only
under extraordinary
circumstance
Beyond 7 years
(absence of 4 years
under extraordinary
circumstance)
IN
REMEDIAL LAW
PURPOSE OF PETITION - to appoint an

administrator
over
the
properties of the absentee.
Hence, if absentee left no
properties, such petition is
unnecessary.
GROUNDS FOR TERMINATION OF THE
ADMINISTRATION
1.
absentee
personally
appears through an agent
2.
absentee death is proven
and heirs appear
3.
third person appears
showing that he acquired title
over the property of the
absentee
4.
Actual or presumptive
death cannot be the subject if it
is the onlt question or matter
involved in a case or upon which
a competent court has to pass.
(Lukban vs. Republic, GR No.
8492, February 29, 1956)
No independent action for Declaration
of Presumption of Death
Exception: the need for declaration of
presumptive death for purposes of
marriage (Article 41 of the Family Code).
RULE 108
CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY
Republic Act No. 9048 which was passed
by Congress on February 8, 2001
substantially amended Article 412 of the
New Civil Code, to wit:
SECTION 1. Authority to Correct Clerical
or Typographical Error and Change of
First Name or Nickname.No entry in a
civil register shall be changed or
corrected without a judicial order,
except for clerical or typographical
errors and change of first name or
nickname which can be corrected or
changed by the concerned city or
municipal civil registrar or consul
general in accordance with the

Special

133
MEMORY AID
provisions of this Act and its
implementing rules and regulations.
The above law speaks clearly. Clerical or
typographical errors in entries of the
civil register are now to be corrected
and changed without need of a judicial
order and by the city or municipal civil
registrar or consul general. The obvious
effect is to remove from the ambit of
Rule 108 the correction or changing of
such errors in entries of the civil
register. Hence, what is left for the
scope of operation of Rule 108 are
substantial changes and corrections in
entries of the civil register. (Lee vs. CA,
G.R. No. 118387, October 11, 2001).
Requisites of Adversarial proceedings
1.
Prop
er petition is filed where the Civil
Registrar and all parties interested
are impleaded.
2.
The
order of the hearing must be
published once a week for three
consecutive weeks.
3.
Notic
e thereof must be given to the Civil
Registrar and all parties affected
thereby.
4.
The
civil registrar and any person having
or claiming any interest under the
entry
whose
cancellation
or
correction is sought may, within 15
days from notice of the petition or
from the last date of publication of
such notice, file his opposition
thereto.
5.
Full
blown trial.
Proceedings for the correction of
entries should not be considered as
establishing ones status in a manner
conclusively beyond dispute. The status
corrected would not have a superior
quality for evidentiary purposes. There is
no increase or diminution of substantive
right. (Chiao Ben Lim vs. Zosa, L- 40252,
December 29, 1986)
PETITIONS FOR
CHANGE OF
PETITIONS FOR
THE CORRECTION,
NAME
IN
REMEDIAL LAW
CANCELLATION OF
ENTRIES
Petition to be filed
in the RTC where
the petitioner
resides
Solicitor General
must be notified by
service of a copy of
the petition.
Verified petition filed

in the RTC where the
corresponding Civil
registry is located
Civil registrar
concerned is made a
party to the
proceeding as a
respondent. The
Solicitor General
must also be notified
by service of a copy
of the petition.
Petition is filed by
Petition is filed by
person desiring to
any person interested
change his name
in any ACT, EVENT,
ORDER or DECREE
Order for hearing
Order shall also be
shall be published
published once for
once a week for
three consecutive
three consecutive
weeks and court shall
weeks
cause reasonable
notice to persons
named in petition
Service of judgment shall be upon the civil
register concerned
Petition for change of name (Rule 103)

and petition for cancellation or
correction of entries are DISTINCT
PROCEEDINGS.
Hence, a party cannot change name and
correct an entry in a single petition
without satisfying the jurisdictional
requirements. (Republic v. Balmore)
RULE 109
APPEALS IN SPECIAL PROCEEDINGS
Orders or judgments from which
appeals may be taken (Sec.1)
An interested person may appeal in
special proceedings from such order or
judgment rendered which:
1.
Allows or disallows a
will;
2.
Determines who are the
lawful heirs of a deceased
person, or the distributive share
of the estate to which such
person is entitled;

Special

134
MEMORY AID
3.
Allows or disallows, in
whole or in part, any claim
against the estate of a deceased
person, or any claim presented
on behalf of the estate in offset
to a claim against it;
4.
Settles the account of an
executor, administrator, trustee
or guardian;
5.
Constitutes,
in
the
proceedings relating to the
settlement of the estate of a
deceased
person,
or
the
administration of a trustee or
guardian, a final determination
in the lower court of the rights
of the party appealing
appealing, except that no appeal
shall be allowed from the
appointment
of
a
special
administrator; and
6.
Is the final order or
judgment rendered in the case,
and affects the substantial rights
of the person appealing, unless
it be an order granting or
denying a motion for a new trial
or for reconsideration.
IN
REMEDIAL LAW
REQUIREMENTS
Notice of Appeal and
Docket Fees
Record on Appeal and

Docket Fees
No extension
May be extended on
meritorious grounds
ORDERS THAT ARE NOT APPEALABLE

1.
Order
directing
administrator to take action to
recover amount due to the
estate;
2.
Order
made
in
administration
proceedings
relating to inclusion or exclusion
of items of property in the
inventory
of
executor
or
administrator;
3.
Order appointing special
administrator;
4.
Order
granting
or
denying a motion for new trial or
for reconsideration.
APPEAL IN
ORDINARY CIVIL
ACTION
APPEAL IN
SPECIAL
PROCEEDINGS
PERIOD:
15 days
30 days

Special

135
MEMORY AID
IN
REMEDIAL LAW
VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS

SPECIAL PROCEEDING
1.
Settlement of the Estate
VENUE
JURISDICTION
Resident of the Decedent or

if the decedent is a nonresident, place where he
had an estate
MTC if the gross value of the

estate does not exceed P200,000,
or P400,000 in Metro Manila
RTC if the gross value of the
estate exceeds the above amounts
2. Escheat
a. Person dies intestate

leaving no heir Resident of
the decedent or if nonresident, in the place where
he had an estate.
RTC
b. Reversion Where the

land lies in whole or in part
RTC
c. Unclaimed Balance
Where the dormant deposits
are located
RTC
Family Court (in case of Minors)

RTC (Regular courtsin cases
other than minors)
5.
Appointment of
Guardians
Where the minor or

incompetent resides
6.
Appointment of
Trustees
Where the will was allowed

or where the property or
portion thereof affected by
the trust is situated
7.
Adoption
Where the adopter resides
Family Court
8.
Rescission of Adoption
Where the adoptee resides
Family Court
9.
Habeas Corpus
Where the detainee is

detained (if the petition is
filed with the RTC)
SC, CA, RTC, MTC in the province

or city in case there is no RTC
judge
RTC

Special

136
MEMORY AID
10. Change of Name
Where petitioner resides
RTC
11. Appointment of
Representative of
Absentee/Declaration of
Absence
Where the absentee resided

before his disappearance
RTC
12. Cancellation/Correction
of Entries in the Civil
Registries
Where the corresponding

Civil Registry is located
IN
REMEDIAL LAW
RTC

Special

Special Proceedings

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may involve only

DIFFERENT MODES OF SETTLEMENT OF

Probate of the Will if

Distribution of Residue, if any

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B. JUDICIAL SETTLEMENT - Testate or

2. When all the parties are heirs and

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1. Extrajudicial settlement of estate;

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value of the estate

While the Rules provide that the

left have been paid at the time of the

REQUISITES OF TWO-YEAR PERIOD LIEN

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because of the public policy to

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MEANING AND EXTENT DUE EXECUTION

1. the testator is of sound and

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GENERAL RULE: Holographic will if

b) Holographic Wills - 3 witnesses

TWO TYPES OF ESTATE PROCEEDINGS:

HOWEVER, in Codoy vs.

REMEDIAL LAW COMMITTEE

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Can a will executed and proved in a

LETTERS TESTAMENTARY AND OF

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the estate or on the other hand, suffer

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4. Pay debts ONLY as may be

Is appointment of special administrator

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retains jurisdiction of the estate, the

court, and render his account within

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2. To examine and make invoices of

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When shall executor or administrator

a) funeral expenses; and

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distribution of the assets of the

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Embezzlement before letters issued

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These requisites need not be

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