SpecPro UP

REMEDIAL LAW REVIEWER
227
UP
L
AW
BAR REVIEWER
2012
REMEDIAL
Special Proceedings
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228
Special Proceedings
REMEDIAL LAW
Criminal Procedure
Civil Procedure
Evidence
Special Proceedings
Preliminary Matters
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.
XV.
XVI.
XVII.
XVIII.
Settlement of estate of deceased

persons, venue and process
Summary settlement of estates
Production and probate of will
Allowance or disallowance of
will
Letters testamentary and of
administration
Claims against the estate
Actions by and against executors
and administrators
Distribution and partition
Trustees
Escheat
Guardianship
Adoption
Writ of habeas corpus
Writ of Amparo (A.M. No. 07-912-SC)
Change of name
Absentees
Cancellation or correction of
entries in the civil registry
Appeals in special proceeding
PRELIMINARY MATTERS
Special proceedings: A remedy by which a party
seeks to establish a status, right or a particular fact
(Rule 1, Sec. 3(c)).
Applicable rules
If special rules are provided, they shall apply.
But in the absence of such special provisions,
the rules applicable in special proceedings shall
be applied (Rule 72, Sec. 2).
There are special proceedings which are not
part of the ROC (e.g. Writs of amparo and
habeas data).
The State has an overriding interest in each
special proceeding, and the matter is not a
controversy between private parties purely
(Bautista).
The distinction between final and interlocutory
orders in civil actions for purposes of
determining the issue of applicability is not
strictly applicable to orders in special

proceedings. Rule 109 specifies the orders from
which appeals may be taken (Regalado).
Rule 33 regarding judgment on demurrer to
evidence is applicable to special proceedings
[Matute v. CA (1969)].
Subject Matter and Applicability of General Rules
Rules of special proceedings are provided for in the
following cases:
(1) Settlement of estate of deceased persons
(2) Escheat
(3) Guardianship and custody of children
(4) Trustees
(5) Adoption
(6) Rescission and revocation of adoption
(7) Hospitalization of insane persons
(8) Habeas corpus
(9) Change of name
(10) Voluntary dissolution of corporations
(11) Judicial approval of voluntary recognition of
minor natural children
(12) Constitution of family home
(13) Declaration of absence and death
(14) Cancellation of correction of entries in the civil
registry.
In the absence of special provisions, the rules
provided for in ordinary actions shall be, as far as
practicable, applicable in special proceedings.
Difference Between Action and Special Proceeding
Ordinary Action
To protect/enforce a
right
or
prevent/
redress a wrong
Involves 2 or more
parties
Governed by ordinary
rules supplemented by
special rules
Initiated by pleading,
and parties respond
through an answer
Special Proceeding
To
establish
right/status/fact
May involve only 1 party

Governed
by
special
rules, supplemented by
ordinary rules
Initiated
by
petition,
parties respond through
an opposition
Action - formal demand of ones right in a court of

justice in the manner prescribed by the court or by
the law (Herrera).
Special proceeding - application or proceeding to
establish the status or right of a party, or particular
fact. No formal pleadings are required, unless the
statute expressly so provides (Herrera).

Venues and Jurisdictions for Special Proceedings
Special Proceeding
Settlement of the Estate
of a Deceased Person
Venue
Residence of the decedent
If non-resident, place where he had an estate
Escheat
Person dies intestate leaving no heir Residence of the

decedent or if non-resident, place where he had estate
Reversion where land lies in whole or in part
Unclaimed Balances Act where deposits are located
Where minor resides
Where incompetent resides
Where will was allowed or
Where the property or portion thereof affected by the
trust is situated
Domestic where adopter resides
Inter-country Adoption ICAB or, where adoptee resides
if filed with the Family Court
Where adoptee resides
If filed with RTC, where detainee is detained
Appointment
of
Guardians
Appointment of Trustees
Adoption
Rescission of Adoption
Habeas Corpus
Habeas Data
Amparo
Change of Name
Appointment
of
Representative
of
Absentee/ Declaration of
Absence
Cancellation / Correction
of
Entries
in
Civil
Registries
Petition for declaration
of nullity, annulment,
legal separation
For the custody of minors, where petitioner resides or

where minor may be found
Where the petitioner or respondent resides, or that which
has jurisdiction over the place where the data or
information is gathered, collected, or stored, at the
option of the petitioner
Where the threat, act or omission was committed or any
of its elements occurred
Judicial - where petitioner resides
Administrative:
Local civil registry where the record sought to be
changed is kept
Local civil registry of the place of residence of the
interested party (only if petitioner migrated to
another place in the Philippines and it is impractical
to file where records sought to be changed are kept)
Philippine consulates only for non-resident citizen
Where Absentee resides before his disappearance
Judicial - Where corresponding civil registry is located

Administrative - Same as change of name
Where petitioner or respondent has been residing for at
least 6 months prior to the date of filing
If non-resident petitioner, where he may be found at the
election of the petitioner
Jurisdiction
MTC if gross value of the
estate does not exceed
P300,000, or does not
exceed
P400,000
in
Metro Manila
otherwise, RTC
RTC
RTC
RTC
Family Court
RTC
RTC
Family Court
ICAB or Family Court
Family Court
SC, CA, RTC, MTC in the
province or city in case
there is no RTC judge
Sandiganbayan, only in
aid of its appellate
jurisdiction
Family Court, CA, SC
RTC generally
If concerning public data
files
or
government
offices, SC, CA or
Sandigabayan
RTC, Sandiganbayan, CA,
SC or any justice thereof
RTC
Local Civil Registry/
Philippine consulate
RTC
RTC
Local Civil Registry/
Philippine consulate
Family Court
229
230
I. SETTLEMENT OF ESTATE OF
DECEASED PERSONS, VENUE AND
PROCESS
A.
B.
C.
D.
Which court has jurisdiction

Venue in judicial settlement of estate
Extent of jurisdiction of Probate Court
Powers and Duties of Probate Court
Exceptions:
(1) Probate court may pass judgment upon the title
but such determination is provisional, not
conclusive, and is subject to final decision; or
(2) With consent of all the parties, without
prejudice to third persons [Trinidad v. CA
(1991)]
A. Which court has jurisdiction

Decedent
Inhabitant
of
the
Philippines at time of
death (citizen/alien)
Inhabitant of foreign
country
Venue
RTC of the province in
which he resides
RTC of any province in
which he had estate
Jurisdiction: court first taking cognizance shall

exercise jurisdiction to the exclusion of all other
courts. [Sec. 1, Rule 73]
General Rule: The jurisdiction assumed by a court,
so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not
be contested in a suit or proceeding,
Exceptions:
(1) In an appeal from that court, in the original
case, OR
(2) When the want of jurisdiction appears on the
record.
Jurisdiction of RTCs
When the value of the estate exceeds P300,000 or
P400,000 in Metro Manila.
Jurisdiction of MTCs
When the value of the estate does not exceed
P300,000 or P400,000 in Metro Manila.
B. Venue in judicial settlement of

estate
Rule 73 relates to venue and not to jurisdiction
The place of residence of the deceased in
settlement of estates, probate of will, and issuance
of letters of administration does not constitute an
element of jurisdiction over the subject matter. It is
only constitutive of venue.
Meaning of term resides
Resides - in the section is viewed in its popular
sense, meaning, the personal, actual or physical
habitation of a person, actual residence of place of
abode. [Garcia Fule v. CA (1976)]
C. Extent
of
jurisdiction
Probate Court
property, not by virtue of any right of inheritance

from the deceased but by title adverse to that of the
deceased and his estate, such questions cannot be
determined in the courts of administration
proceedings. It must be settled in a separate action.
of
Probate court is of limited jurisdiction

General rule: When questions arise as to ownership
of property alleged to be part of the estate of the
deceased but claimed by some other person to be his
D. Powers and Duties of Probate

Court
Dariano vs. Fernandez Fidalgo (1909): It is the
duty of courts of probate jurisdiction to guard
jealously the estates of the deceased person by
intervening in the administration thereof in order to
remedy or repair any injury that may be done
thereto
In Re: Baldomero Cosme (1937: There seems,
however, to be a general tendency, in the absence
of express and specific restrictions to the contrary,
to uphold the exercise by the probate court of such
incidental powers as are, within the purview of their
grant of authority, reasonably necessary to enable
them to accomplish the objects for which they were
invested with jurisdiction and to perfect the same.
II. SUMMARY SETTLEMENT OF

ESTATES
A. Extrajudicial settlement by agreement
between heirs, when allowed
B. Two-year prescriptive period
C. Affidavit of Self-adjudication by sole heir
D. Summary settlement of estates of small
value, when allowed
E. Remedies of aggrieved parties after extrajudicial settlement of estate
Extrajudicial
Settlement
No will (intestate)
No debts
Gross value of estate
may exceed P10,000
Summary Settlement
Will may or may not
exist (intestate/testate)
Debts may or may not
exist
Gross value of estate
may not exceed P10,000
A. Extrajudicial settlement
by agreement between
heirs, when allowed
Requisites
(1) No will
(2) No debts OR the heirs have already paid such at
the time of partition

(3) Heirs are all of age or the minors are
represented by their judicial or legal
representatives
Procedure
Death of the decedent
Division of estate in public instrument or affidavit of

adjudication
Filing of the public instrument or affidavit of

adjudication with the proper Registry of Deeds
Publication of notice of the fact of extrajudicial

settlement once a week for 3 consecutive weeks in a
newspaper of general circulation
Filing of bond equivalent to the value of personal

property
If there is no
disagreement
between the
heirs
If there is
disagreement
If only
heir
one
The parties may divide the estate

among themselves by means of a
public instrument filed in the
office of register of deeds.
They may divide the estate in an
ordinary action of partition.
He may adjudicate to himself the
entire estate by means of an
affidavit filed in the Registrar of
Deeds.
Bond Requirement
File a bond equal to the value of the personal
property involved as certified to under oath by the
parties, conditioned upon the payment of any just
claim that may be filed of deprived heirs and
creditors. [Sec. 1, Rule 74]
Publication
Fact of the extrajudicial settlement shall be
published in a newspaper of general circulation 3
times a week, once each week. [Sec. 1, Rule 74]
Not binding on any person who:
(1) Has not participated in the extrajudicial
settlement; or
(2) Had no notice thereof. [Sec. 1, Rule 74]
Validity of oral partition
Such is VALID, because there is no law that requires
partition among heirs to be in writing to be valid.
[Pada Kilario v. CA (2000)]
Requirement under Rule 74.1 is merely for the
protection of creditors and the heirs themselves
against tardy claims. Where there are no creditors,
the requirements no longer apply.
Validity of compromise agreement
Such is VALID, binding upon the parties as
individuals, upon the perfection of the contract,
even without previous authority of the court to enter
into such agreement.
No preclusion
proceedings
from
instituting
administration
Sec. 1, Rule 74 does not preclude the heirs from

instituting administration proceedings, even if the
estate has no debts or obligations, if they do not
desire to resort for good reasons to an ordinary
action for partition. While Sec. 1 allows the heirs to
divide the estate among themselves as they may see
fit, or to resort to an ordinary action for partition,
the said provision does not compel them to do as if
they have good reasons to take a different course of
action. [Pereira v CA (1989)]
B. Two-year
period
prescriptive
Claim by creditors and deprived heirs must be filed

within 2 years from the time of distribution/
publication.
Presumption of no debts
It shall be presumed that the decedent left no debts
if no creditor files a petition for letters of
administration within 2 years after the death of the
decedent. [Sec. 4, Rule 74]
C. Affidavit
of
Selfadjudication by sole heir
If there is only one heir, he may adjudicate to
himself the entire estate by means of an affidavit
filed in the office of register of deeds.
Bond Requirement
File a bond equal to the value of the personal
property involved as certified to under oath by the
parties, conditioned upon the payment of any just
claim that may be filed
D. Summary settlement of
estates of small value,
when allowed
This shall be applicable to testate or intestate
proceedings.
When Allowed
(1) Gross value of estate: x < P300,000 outside
Metro Manila and x < 400,000 in Metro Manila
(2) Fact is made to appear to the RTC
(3) Through petition of an interested person
(4) Upon hearing
Held not less than 1 month nor more than 3
months
Counted from the date of the last publication
of a notice
(5) Notice
Which shall be published once a week for 3
consecutive weeks
In a newspaper of general circulation in the
province
It is not required that publication be for a
complete 21 days. What is required is that it
be published for once a week for 3
consecutive weeks.
231

(6) Notice to interested persons as the court may
direct.
232
Upon fulfillment of the requisites, the court may

proceed summarily without the appointment of an
executor/administrator and without delay,
(7) to grant, if proper, allowance of the will, if any
there be
(8) to determine who are persons legally entitled to
participate in the estate
(9) to apportion and divide among them after the
payment of such debts of the estate
(10) persons in own right if of lawful age, or their
guardians, will be entitled to receive and enter
into possession of the portions of the estate so
awarded to them respectively
Procedure
Death of the decedent
Application for summary settlement with an

allegation that the gross value of the estate does not
exceed P10K
Publication of notice of the fact of extrajudicial

settlement once a week for 3 consecutive weeks in a
newspaper of general circulation (the court may also
order notice to be given to other persons as such
court may direct)
Hearing to be held not less than 1 month nor more

than 3 months from the date of the last publication
of notice
Court to proceed summarily, without appointing an

executor/administrator (executor/administrator),
and to make orders as may be necessary
Grant allowance of the will, if any
Determine persons entitled to estate
Pay debts of estate which are due
Filing of bond fixed by the court
Partition of estate
Notes: There is no requirement regarding the lack of
debts (unlike extrajudicial partition) in summary
settlement of estates of small value since the court
will make provisions for such in its resolution of the
proceedings.
E. Remedies of aggrieved
parties
after
extrajudicial settlement of
estate
Two-Year Period for Liability of Distributees and
Estate for Claims of Deprived Heirs or Unpaid
Creditors
If it shall appear within 2 years after the summary

settlement and distribution that there is an heir or
other person who
(1) has been unduly deprived of his lawful
participation in the estate:
He shall have a right to compel the

settlement of the estate in the courts for
the purpose of satisfying such lawful
participation
(2) has been unduly deprived of his lawful
participation payable in money: The court
having jurisdiction of the estate may, by order
for that purpose, after hearing,
settle the amount of such debts or lawful

participation, and
order how much and in what manner each

distributee shall contribute in the payment
thereof, and
may issue execution, if circumstances

require, against the bond provided in the
preceding section or against the real estate
belonging to the deceased, or both.
Such bond and real estate shall remain charged with
a liability to creditor, heirs or other persons for the
full period of 2 years after such distribution,
notwithstanding any transfers of real estate that
may have been made.
Heir/person deprived of
lawful participation in
estate
REMEDY within 2 yr.
period: May compel the
settlement of the estate
in the courts in the
manner
hereinafter
provided for the purpose
of satisfying such lawful
participation.
Heir/person deprived of
lawful participation in
PAYABLE IN MONEY
REMEDY within 2 yr.
period: court may order
after
hearing,
the
settlement of the debt
or lawful participation
and order how much and
in what manner each
distribute
shall
contribute
in
the
payment thereof and
may issue execution,
(1) against bond, or
(2) against the real
estate belonging to
the deceased, or
(3) both.
[Sec. 4, Rule 74].
Period for Claim of Minor or Incapacitated Person

If on the date of the expiration of the period of 2
years prescribed in the preceding section the person
authorized to file a claim is:
(1) a minor or mentally incapacitated, or is in
prison or
(2) outside the Philippines,
he may present his claim within 1 year after such
disability is removed.
Duty of the court
(1) Hear the case
(2) Settle the amount
(3) Order how much and in what manner each
distribute shall contribute in the payment
thereof

(4) If circumstances require, issue execution against
the bond, or the real estate belonging to the
deceased, or both
Bond and real estate remain charged
Bond charged with a liability to creditors, heirs, or
other persons for the full period of 2 years after such
distribution, notwithstanding any transfers of real
estate that may have been made
Rule not applicable:
(1) To persons who have participated or taken part
or had notice of the extrajudicial partition
(2) When the provisions of Sec. 1 of Rule 74 have
been strictly complied with (all persons or heirs
of the decedent have taken part in the
extrajudicial settlement or are represented by
themselves or through guardians)
This is only a Bar against the parties who had
taken part in the extrajudicial proceedings, but
not against third persons not parties thereto
Action to Annul a Deed of Extrajudicial

Partition
A. Nature
of
proceeding
probate
General Rule: A probate proceeding only looks at

extrinsic validity and not intrinsic validity. Probate
is merely the determination of whether or not the
testator, being of sound mind, freely executed the
will in accordance with the formalities prescribed by
law
Exception: Under exceptional circumstances, the
probate court is not powerless to do what the
situation constrains it to do and pass upon certain
provisions of the will. It may pass upon the intrinsic
validity of the will because there is apparent defect
in its face this is also known as the principle of
practical consideration [Nepomuceno v CA (1985)].
(Ex. When on the face of the will the petitioner
appears to be preterited)
But the remedy of certiorari is available, where the
grounds for dismissal are indubitable (e.g. grave
abuse of discretion of the judge when there is
clearly preterition and the said judge still continues
the probate proceedings)
Prescriptive period
Action to annul a deed of extrajudicial settlement
upon the ground of fraud may be filed within 4 years
from the discovery of the fraud (deemed to have
taken place when said instrument was filed with the
Register of Deeds and new certificates of title were
issued in the name of respondents respectively).
Decree of probate is conclusive as to its due

execution, subject to the right of appeal
HOWEVER in Amerol v. Bagumbaran (1987), the

Court applied the New Civil Code. Under Article 1144
(NCC), the following actions must be brought within
10 years from the time the right of action accrues:
(1) upon a written contract (2) upon an obligation
created by law (3) upon a judgment.
Rodelas v Aranza (1982):

General Rule: If a holographic will has been lost or
destroyed and no other copy is available, the will
cannot be probated because the best and only
evidence is the handwriting of the testator in said
will.
Since implied or constructive trusts are obligations

created by law, then the prescriptive period to
enforce the same prescribes in 10 years. Thus, an
action for reconveyance based on an implied or
constructive trust must perforce prescribe in 10
years and not otherwise.
Exception: A photostatic copy or Xerox of the

holographic will may be allowed because comparison
can be made with the standard writings of the
testator.
Exception
Prescriptive period for the filling of the action for
reconveyance based on implied trust should be
reckoned from the actual discovery of the fraud
where the registration where there was bad faith in
securing the certificates of titles and, is therefore a
holder of the said certificate in bad faith. The
Torrens title does not furnish a shield for fraud.
III. PRODUCTION AND PROBATE

OF WILL
A. Nature of probate proceeding
B. Who may petition for probate; persons
entitled to notice
Suit for forgery of a will, which has been duly

probated and such order becoming final, Bars such
suit because the will is conclusively deemed as duly
executed.
B. Who may petition for

probate; persons entitled
to notice
Petitioner for the allowance of the will
(1) Executor
(2) Devisee
(3) legatee
(4) other person interested in the estate
(5) testator himself, during his lifetime
Meaning of interest in estate
In order that a person may be allowed to intervene
in a probate proceeding he must have an interest in
the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant of
the estate and an interested party is one who would
be benefited by the estate such as an heir or one
who has claim against the estate like a creditor.
233
234
Jurisdiction, how acquired

(1) Attaching a mere copy of will or
(2) Delivery of will, even if no petition is filed or
(3) Filing of the original petition and compliance
with Sec 3-4 Rule 76.
IV. ALLOWANCE OR
DISALLOWANCE OF WILL
A. Contents of petition for allowance of will
B. Grounds for disallowing a will
C. Reprobate; Requisites before will proved
outside allowed in the Philippines; effects
of probate
A. Contents
of
petition
allowance of will
for
(1) Jurisdictional facts

(a) Death of the decedent
(b) Residence at the time of death in the
province where the probate court is sitting
(c) Or if he is an inhabitant of a foreign
country, his leaving his estate in such
province
(2) Names, ages, and residences of the heirs,
legatees, and devisees of the testator or
decedent
(3) Probable value and character of the property of
the estate
(4) Name of the person for whom letters are prayed
(5) If the will has not been delivered to the court,
the name of the person having custody of it.
Defect in petition
Defect in petition will not void the allowance of the
will, or the issuance of letters testamentary or of
administration with the will annexed.
B. Grounds for disallowing a will

(1) If not executed and attested as required by law
(2) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its
execution
(3) If executed under duress, or the influence of
fear, or threats
(4) If procured by undue and improper pressure and
influence, on the part of the beneficiary, or of
some other person for his benefit
(5) If the signature of the testator was procured by
fraud or trick, and he did not intend that the
instrument should be his will at the time of
fixing his signature thereto
Note: The grounds for disallowance of will are
exclusive.
C. Reprobate; Requisites before

will proved outside allowed in
the Philippines; effects of
probate
Reprobate
Wills proved and allowed in a foreign country,
according to the laws of such country, may be
allowed, filed, and recorded by the proper Court of
First Instance in the Philippines.
Requisites for Allowance
(1) Copy of the will
(2) Order or decree of the allowance in foreign
country
(3) Filed with a petition for allowance in the
Philippines by executor or other person
interested
(4) Court shall fix a time and place for the hearing
(5) Cause notice thereof to be given as in case of an
original will presented for allowance.
Effect
The will shall have the same effect as originally
proven and allowed by such court
V. ALLOWANCE OR
DISALLOWANCE OF WILL
A. When
and
To
whom
letters
of
administration granted
B. Order of preference
C. Opposition
to
issuance
of
letters
testamentary; simultaneous filing of
petition for administration
D. Powers and duties of Executors and
Administrators; restrictions on the powers
E. Appointment of Special Administrator
F. Grounds for removal of administrator
A. When and To whom

letters
of
administration granted
When Granted
(1) No executor named or
(2) Executor or executors are incompetent, refuse
the trust, or fail to give bond or
(3) Or person dies intestate.
To Whom Granted
Discretionary upon the probate court
B. Order of preference
Order of preference in the grant of administration
(1) Surviving spouse or next of kin, or both, or to
such person as the surviving spouse, or next of
kin requests to have appointed, if competent
and willing to serve.
(2) If those in (a) be incompetent or unwilling, or if
the husband or widow, or next of kin, neglects
for 30 days after the death of the person to
apply for administration or to request that
administration be granted to some other person,
it may be granted to one or more of the
principal creditors, if competent and willing to
serve.

(3) If there is no (b), it may be granted to such
other person as the court may select.
Reason for order of preference
Those who would reap the benefit of a wise, speedy
and economical administration of the estate, or, on
the other hand, suffer the consequences of waste,
improvidence or mismanagement, have the highest
interest and most influential motive to administer
the estate correctly.
Mere failure to apply for letters of administration
does not remove preference.
Order of Preference NOT Absolute
A probate court cannot arbitrarily disregard the
preferential rights of the surviving spouse to the
administration of the estate of a deceased person
but if the person enjoying such preferential rights is
unsuitable the court may appoint another person.
[Silverio v. CA (2007)]
The order of preference is not absolute for it
depends on the attendant facts and circumstances of
each case. The selection of an administrator lies in
the sound discretion of the trial court. [In Re Suntay
(2007)]
30-day period may be waived
Just as the order of preference is not absolute and
may be disregarded for valid cause, so may the 30day period be likewise waived under the permissive
tone in paragraph (b) of said rule which merely
provides that said letters as an alternative, may be
granted to one or more of the principal creditors.
Co-administrators may be appointed.
Court may reject order
circumstances warrant.
of
preference
when
C. Opposition to issuance
of letters testamentary;
simultaneous filing of
petition
for
administration
Opposition
to
testamentary
issuance
of
letters
Who may oppose: Any person interested in will

Form required: State in writing the grounds why
letter should not issue; the court shall then hear and
pass upon sufficiency of such grounds.
Simultaneous filing of Opposition and Petition: A
petition may, at the same time, be filed for letters
of administration with the will annexed.
Lack of interest in the proceedings is equal to lack of
legal capacity to institute proceedings.
Opposition to
administration
Grounds
petition
for
letters
of
(1) Incompetency of the person for whom letters

are prayed, or
(2) Contestants own right to the administration
Simultaneous Filing of Letters
He may pray that letters issue to himself, or to any
competent person or person named in the
opposition.
D. Powers and duties of

Executors
and
Administrators;
restrictions
on
the
powers
General Powers and Duties
Executors and Administrators
of
1. Executor or Administrator to Have

Access to Partnership Books and
Property at All Times
(a) Have access to, and may examine and take
copies of, books and papers relating to the
partnership business,
(b) Examine and make invoices of the property
belonging to such partnership
(c) The surviving partner or partners, on request,
shall exhibit to him all such books, papers, and
property in their hands or control.
Courts duty: order any such surviving partner or
partners to freely permit the exercise of the rights,
and to exhibit the books, papers, and property, as in
this section provided, and may punish any partner
failing to do so for contempt.
2. Keep Buildings
Repair
in
Tenantable
(a) Houses and other structures and fences

belonging to the estate, and
(b) Deliver the same in such repair to the heirs or
devisees when directed so to do by the court.
3. Right
to
Possession
Management of the Real
Personal Properties
and
and
(a) So long as it is necessary for the payment of the

debts and the expenses of administration
(b) Administrator cannot exercise the right of legal
redemption over a portion of the property
owned in common sold by one of the other coowners since this is not within the powers of
administrator.
Note: When the estate of a deceased is already
subject of a testate or intestate proceeding, the
administrator cannot enter into any transaction
involving it without any prior approval of the Court.
235
236
The right of an executor/administrator to the

possession and management of the real and personal
properties of the deceased is not absolute and can
only be exercised so long as it is necessary for the
payment of the debts and expenses of administration
Restrictions on Powers of Executors

and Administrators
1. Executor
or
Administrator
Chargeable with all Estate and
Income
Chargeable in his account with the whole of the
estate which has come into his possession, at the
value of the appraisement contained in the
inventory:
(a) With all the interest,
(b) Profit
(c) Income of such estate and
(d) With the proceeds of as much of the estate as is
sold by him, at the price at which it was sold.
2. Prohibited from Profiting by

Increase or Losing by Decrease in
Value
(a) No executor/administrator shall profit by the
increase, or suffer loss by the decrease or
destruction, without his fault, of any part of the
estate
(b) Account for the excess (when sold for more)
(c) If sold for less, not responsible for loss, if in
good faith
(d) If settled claim for less - He is entitled to
charge in his account only the amount he
actually paid on the settlement
(e) Not accountable For debts due the deceased
which remain uncollected without his fault
3. Accountable for Income

Realty Used by Him
from
If the executor/administrator uses or occupies any

part of the real estate himself, he shall account for
it as may be agreed upon between him and the
parties interested, or adjusted by the court with
their assent and if the parties do not agree upon the
sum to be allowed, the same may be ascertained by
the court, whose determination in this respect shall
be final
4. Accountable if He Neglects or
Delays to Raise or Pay Money
(a) Neglects or unreasonably delays to raise money,
by collecting the debts or selling the real or
personal estate of the deceased, or
(b) Neglects to pay over the money he has in his
hands, and the value of the estate is thereby
lessened or unnecessary cost or interest
accrues, or the persons interested suffer loss.
(c) Executors/administrators responsibility for
damages incurred cannot be shifted to the
intestate estate.
5. Only Necessary Expenses shall be

allowed
(a) The amount paid by an executor/administrator
for costs awarded against him shall be allowed
in his administration account
(b) Unless it appears that the action or proceeding
in which the costs are taxed was prosecuted or
resisted without just cause, and not in good
faith.
(c) Administrator may not recover attorneys fees
from estate
Necessary expenses: Such expenses as are entailed
for the preservation and productivity of the estate
and for its management for purpose of liquidation,
payment of debts, and distribution of the residue
among persons entitled thereto
6. Executor
or Administrator
Render Account
to
Accounting
- Within 1 year from the time of receiving letters
testamentary or of administration
- Unless the court otherwise directs because of
extensions of time for presenting claims against,
or paying the debts of, the estate, or for disposing
of the estate
Further accounts - If court requires
- The rendering of an accounting by an
administrator of his administration within 1 year
from his appointment is mandatory. The only
exception is when the court otherwise directs
because of extensions of time for presenting
claims against the estate or for paying the debts
or disposing the assets of the estate
- The fact that the heirs of the estate have entered
into an extrajudicial settlement and partition in
order to put an end to their differences cannot in
any way be interpreted as a waiver of the
objections of the heirs to the accounts submitted
by the administrator not only because to so hold
would be a derogation of the pertinent rules but
also because there is nothing provided in said
partition that the aforesaid accounts shall be
deemed waived or condoned.
Examination on Oath by Court
- As to the correctness of his account before the
same is allowed, except when no objection is
made to the allowance of the account and its
correctness is satisfactorily established by
competent proof
- The heirs, legatees, distributees, and creditors of
the estate shall have the same privilege as the
executor/administrator of being examined on oath
on any matter relating to an administration
account.
E. Appointment of Special
Administrator
When appointed
(1) When there is delay in granting letters
testamentary or administration, or
(2) By any cause, including an appeal from
allowance or disallowance of a will.
Duties
Will take possession and charge of the estate until:
(1) the questions causing the delay are decided and
(2) executor/administrator appointed
Procedure for appointment
There must first be notice and publication. Notice
through publication of the petition is a jurisdictional
requirement even in the appointment of a special
administrator.
Appointment of special administrator lies entirely in
the sound discretion of the court.
Powers and Duties of Special Administrator
(1) Take possession and charge of the goods,
chattels, rights, credits, and estate of the
deceased and
(2) Preserve
the
same
for
the
executor/administrator afterwards appointed,
(3) and for that purpose may commence and
maintain suits as administrator.
(4) May sell only such perishable and other property
as the court orders sold.
(5) Not liable - to pay any debts of the deceased
unless so ordered by the court.
When Special Administrator Ceases Duties
When letters testamentary/administration are
granted on the estate of the deceased
(1) He shall deliver to the executor/administrator
the goods, chattels, money, and estate of the
deceased in his hands.
(2) The executor/administrator may prosecute to
final judgment suits commenced by such SA.
F. Grounds for removal of

administrator
Grounds for removal of executor or administrator
(1) Neglects to:
(a) Render his account
(b) Settle the estate according to law
(c) Perform an order or judgment of the court,
or a duty expressly provided by these rules
(2) Absconds
(3) Becomes insane or
(4) Becomes incapable or unsuitable to discharge
the trust.
Effect of Removal
(1) The remaining executor/administrator may
administer the trust alone, unless the court
grants letters to someone to act with him.
(2) If there is no remaining executor/administrator,
administration may be to any suitable person.
VI. CLAIMS AGAINST THE ESTATE

A. Time within which claims shall be filed;
exceptions
B. Statute of Non-claims
C. Claim of Executor or administrator against
the Estate
D. Payment of Debts
Estate burdened with lien of creditors
Upon the death of the person, all his property is
burdened with all his debts, his debts creating an
equitable lien thereon for the benefit of the
creditors.
And such lien continues until the debts are
extinguished either by the payment, prescription, or
satisfaction in one of the modes recognized by law
Purpose of presentation of claims against estate
(1) To protect the estate of the deceased.
(2) That way, the executor/administrator will be
able to examine each claim, determine whether
it is a proper one which should be allowed.
(3) The primary object of the provisions requiring
presentation is to appraise the administrator
and the probate court of the existence of the
claim so that a proper and timely arrangement
may be made for its payment in full or by prorata portion in the due course of the
administration, inasmuch as upon the death of a
person, his entire estate is burdened with the
payment of his debts and no creditor shall enjoy
any preference or priority all of them shall share
pro-rata in the liquidation of the estate of the
deceased
A. Time
within
which
claims shall be filed;
exceptions
Claims must be filed within the time specified by the
court in its notice which shall not be less than 6
months nor more than 12 months from the date of
the first publication of the notice
B. Statute of Non-claims
Claims Covered
(1) Claims for money against the decedent arising
from contract
- Express or implied
- Due or not
- Contingent or not
(2) Claims for funeral expenses
(3) Expenses for the last sickness
(4) Judgment for money against the decedent.
The period, once fixed by the courts, is mandatory
237
238
Effect of non-claim forever barred

Failure to make the claim within the time fixed by
the Courts will result in barring any recovery.
Purpose: to settle the estate with dispatch, so that
the residue may be delivered to the persons entitled
thereto without their being afterwards called upon
to respond in actions for claims, which, under the
ordinary statute of limitations have not yet
prescribed.
De Bautista v De Guzman (1983): Rule 86.5 is
mandatory so that the estate of the deceased can be
protected against fraudulent complaint. Thus, upon
the dismissal of the first complaint, the plaintiffs
should have presented their claims before the
intestate proceedings then pending in the same
court. The failure to present their claims before the
intestate proceedings of the estate of decedent
within the prescribed period constituted a bar to a
subsequent claim against the estate or a similar
action of the same import.
EXCEPTION:
(1) When set forth as counterclaims in any action
that the executor/administrator may bring
against the claimants
(2) If the decedent is a creditor and the executor or
administrator commences an action or continues
the action - the debtor may set forth by answer
the claims he has against the decedent, instead
of presenting them independently to the court.
Mutual claims may be set off against each other in
such action.
Effect if a debtor obtains a favorable judgment
against the estate: the amount shall be considered
the true balance against the estate, as though the
claim had been presented directly before the court
in the administration proceedings
Rule on belated claims
The Court has the discretion to allow contingent
claims
The law gives the probate court discretion to allow
claims presented beyond the period previously fixed
provided they are filed within 1 month from the
expiration of such period but in no case beyond the
date of entry of the order of distribution.
The presentation of money claim may be waived.
C. Claim of Executor or
administrator
against
the Estate
Procedure to follow if the executor or
administrator has a claim against the estate he
represents
(1) Executor/Administrator
shall
give
notice
thereof, in writing, to the court
(2) The court shall appoint a special administrator
who shall have the same powers and liabilities
as the general executor/administrator in the

adjustment of such claim.
(3) The court may order the executor or
administrator to pay to the special administrator
necessary funds to defend such claim.
D. Payment of Debts
Debts Paid in Full if Estate Sufficient
(1) After all money claims heard and ascertained;
and
(2) It appears that there are sufficient assets to pay
the debts
Executor/administrator shall pay the same within
the time limited for that purpose.
The probate court may hold in abeyance intestate
proceedings pending determination of a civil case
against the administratrix.
The heirs of the estate may not demand the closing
of an intestate proceeding at anytime where there is
a pending case against the administrator of the
estate. The court can rightfully hold in abeyance
until the civil case is settled.
Part of Estate from Which Debt Paid When
Provision Made by Will
(1) Testator provided for payment of debt
Expenses of administration, or family expenses
shall be paid according to such provisions
(2) If not sufficient
The part of the estate not disposed of by will
shall be appropriated for the purpose
Personally First Chargeable for Debts, Then Realty
General Rule: Personal estate not disposed of by
will shall be FIRST chargeable
Exception
(1) Not sufficient for the purpose; or
(2) Its sale will redound to the detriment of the
participants for the estate
In which case
- The whole of the real estate not dispose of by
will, or so much thereof as is necessary, may
be
sold,
mortgaged,
or
otherwise
encumbered for that purpose by the
executor/administrator,
- Court approval must be obtained first
- Any deficiency shall be met by contributions
in accordance with the provisions of S6 of this
rule.
Estate to Be Retained to Meet Contingent Claims
If court is satisfied that such claim is valid:
(1) It may order the executor/administrator to
retain in his hands sufficient estate
(2) For the purpose of paying the contingent claim
when such becomes absolute.
If estate insolvent - Retain a portion equal to the
dividend of the other creditors.

Contingent Claim When Allowed
(1) When it becomes absolute;
(2) Presented
to
the
court
or
executor/administrator within 2 years from the
time limited for other creditors to present their
claims; and
(3) Not disputed by executor/administrator
If disputed
It may be proved and allowed or disallowed by the
court as the facts may warrant
Court ruling: Allowance of contingent claim or
Disallowance
If allowed - Creditor shall receive payment to the
same extent as the other creditors if the estate
retained by the executor/administrator is sufficient.
Claim not presented after becoming absolute and
allowed within 2 year period
The assets retained in the hands of the
executor/administrator, not exhausted in the
payment of claims, shall be distributed by the order
of the court to the persons entitled
But the assets so distributed may still be applied to
the payment of the claim when established, and the
creditor may maintain an action against the
distributees to recover the debt, and such
distributees and their estates shall be liable for the
debt in proportion to the estate they have
respectively received.
Court to Fix Contributive Shares Where Devisees,
Legates, or Heirs Have Been in Possession
(1) Possession before debts and expenses paid
Court shall
- Hear and settle the amount of their several
liabilities
- Order how much and in what manner each
shall contribute
- May issue execution as circumstances require.
(2) Liability of heirs and distributes
Heirs are not required to respond with their own
property for the debts of their deceased
ancestors. But after partition of an estate, the
heirs and distributees are liable individually for
the payment of all lawful outstanding claims
against the estate in proportion to the amount
or value of the property they have respectively
received from the estate
Order of Payment if Estate Is Insolvent
Executor/administrator pays the debts against the
estate, observing the provisions of Articles 1059 and
2239 to 2251 of the Civil Code. (Preference of
credits)
Dividends to Be Paid in Proportion to Claims
Each creditor within such class shall be paid dividend
in proportion to his claim. No creditor of any one
class shall receive any payment until those of the
preceding class are paid.
Insolvent Non-Resident
His estate found in the Philippines shall be so
disposed of that his creditors here and elsewhere
may receive each an equal share, in proportion to
their respective credits.
Insolvent Resident with Foreign Creditors and
Foreign claims proven in another country
(1) Executor/administrator in the Philippines had
knowledge of the presentation of such claims in
such country; and
(2) Executor/administrator had opportunity to
contest such allowance
The court shall:
(1) Receive a certified list of such claims, when
perfected in such country,
(2) And add the same to the list of claims proved
against the deceased person in the Philippines
(3) So that a just distribution of the whole estate
may be made equally among all its creditors
But the benefit of this and the preceding sections
shall not be extended to the creditors in another
country if the property of such deceased person
there found is not equally apportioned to the
creditors residing in the Philippines and the other
creditor, according to their respective claims
Order of Payment of Debts
Before the expiration of the time limited for the
payment of the debts
(1) The court shall order the payment thereof, and
the distribution of the assets received by the
executor/administrator for that purpose among
the creditors,
(2) As the circumstances of the estate require and
in accordance with the provisions of this rule
Appeal Taken From a Decision of the Court
Concerning the Claim
The court may:
(1) Suspend the order for payment or order the
distribution among creditors whose claims are
definitely allowed
(2) Leave in the hands of executor/administrator
sufficient assets to pay the claim disputed and
appealed.
When a disputed claim is finally settled court
shall order the claim to be paid out of the assets
retained to the same extent and in the same
proportion with the claims of other creditors.
Time to Time Further Orders of Distribution
(1) Whole of the debts not paid on first distribution;
and
(2) If the whole assets not distributed or other
assets afterwards come to the hands of
executor/administrator.
Creditors to Be Paid in Accordance With Terms of
Order
When an order is made for the distribution of assets
among creditors, the executor or administrator shall,
as soon as the time of payment arrives, pay the
creditors the amounts of their claims, or the
239

dividend thereon, in accordance with the terms of
such order.
240
Court Shall Allow Executor or Administrator a Time

for Disposing the Estate and Paying Debts and
Legacies
Period: x < 1 year
- Court may extend the time to x < 6 months
per extension
- Whole period to the original executor/
administrator MUST be only x < 2 years
Requisites
(1) Executor/administrator must apply.
(2) Notice must be given as to time and place
of hearing.
(3) Court must hear the application.
Ground for Extension
(1) Original executor/administrator dies
(2) New administrator appointed
Consequence: The court may extend the time
allowed for the payment of the debts or legacies
beyond the time allowed to the original
executor/administrator
- x < 6 months
- Not exceeding 6 months at a time and not
exceeding 6 months beyond the time which the
court might have allowed to such original
- Notice shall be given of the time and place for
hearing such application, as required in the last
preceding section.
VII. ACTIONS BY AND AGAINST

EXECUTORS AND
ADMINISTRATORS
A. Actions that may be brought against executors
and administrators
B. Requisites before creditor may bring an action
for recovery of property fraudulently
conveyed by the deceased
A. Actions that may be

brought
against
executors
and
administrators
Actions Which May and Which May Not Be
Brought
AGAINST
the
Executor
or
Administrator
Actions to be brought against Administrators
(1) Recover real or personal property or interest
therein
(2) Or to enforce a lien thereon and
(3) Actions to recover damages for an injury to a
person or property
Claims against the administrator may be presented
in the administration proceedings but not against
third persons.
An administrator may not pull a third person against

his will into the administration proceedings by mere
motion for a demand of rentals, but must do so in a
separate action
Actions which may NOT brought against
Administrators
Claim for the recovery of money or debt or interest
cannot be brought against executors/administrators.
Executor or Administrator may Bring or Defend
Actions Which Survive
For the recovery or protection of the property or
rights of the deceased
Covers injury to property i.e. not only limited to

injuries to specific property, but extends to
other wrongs by which personal estate is injured
or diminished.
When
Recovery
of
Property
Fraudulently
Conveyed by Deceased May be Recovered
(1) There is deficiency of assets and the deceased,
in his lifetime, had conveyed real or personal
property, right or interest therein, or debt or
credit with intent to defraud his creditors or
avoid any right, debt or duty; or
(2) Had so conveyed such property, right, interest,
debt or credit that by law the conveyance would
be void as against the creditors; and
(3) The subject of the attempted conveyance would
be liable to attachment by any of them in his
lifetime.
Duty of executor/administrator
(1) Commence and prosecute to final judgment an
action for the recovery of such property, right,
interest, debt or credit for benefit of the
creditors
(2) Provided, creditors making the application pay
such part of the costs and expenses or give
security therefor.
If a person before granting letters testamentary or
administration
(1) Embezzles or alienates
(2) Any of the money, goods, chattels, or effects of
such deceased
Consequence: Such person shall be liable to an
action in favor of the executor/administrator of the
estate for double the value of the property sold,
embezzled, or alienated, to be recovered for the
benefit of such estate.
B. Requisites
before
creditor may bring an
action for recovery of
property fraudulently
conveyed
by
the
deceased
Any creditor may commence and prosecute to final
judgment a like action for the recovery of the

subject of the conveyance or attempted conveyance
if the following requisites are satisfied:
Allowed in Two Instances
(1) If executor/administrator failed to commence
such action
(a) With court permission
(b) In the name of the executor/administrator
(c) He files a bond, conditioned to indemnify
the executor/administrator against the cost
and expenses incurred by such action
(2) If conveyance or attempt is made in favor of
- No need for court permission
- No need for Bond.
- Action shall be brought in the name of all the
creditors
Effect
Such creditor shall have a lien upon any judgment
recovered by him in the action for such costs and
other expenses incurred therein as the court deems
equitable.
VIII. DISTRIBUTION AND

PARTITION
A. Liquidation
B. Project of Partition
C. Remedy of an heir entitled to residue but
not given his share
D. Instances when probate court may issue
writ of execution
Before there could be a distribution of estate, the
following stages must be followed:
(1) Liquidation of the estate i.e. payment of
obligations of the deceased.
(2) Declaration of heirs to determine to whom
the residue of the estate should be distributed.
Afterwards, the residue may be distributed and
delivered to the heirs.
- Determination the right of a natural child
- Determination of proportionate shares of
distributes.
A. Liquidation
Before an order of distribution or assignment of the
estate of the decedent among or to those entitled
thereto by will or by law shall be made to close the
proceedings for the settlement, it must be shown
that the debts, funeral expenses and expenses of
administration, allowances, taxes, etc., chargeable
to the estate have been paid.
General Rule: The following must be paid before
distribution:
(1) Debts
(2) Funeral charges
(3) Expenses of administration
(4) Allowance to the widow
(5) Inheritance tax.
Exception: The distributees give a bond conditioned

on the payment of above obligations
B. Project of Partition
A project of partition is merely a proposal for the
distribution of the hereditary estate which the court
may accept or reject.
The executor/administrator has no duty to prepare
and present the same under the Rules.
The court may, however, require him to present
such project to better inform itself of the condition
of the estate.
It is the court that makes that distribution of the
estate and determines the persons entitled thereto
(1) On application of executor/administrator or
person interested in the estate
(2) Notice
(3) Hearing
Court shall assign the residue of the estate to the
persons entitled to the same, naming them and the
proportions, or parts, to which each is entitled.
Such persons may demand and recover their
respective shares from the executor/administrator,
or any other person having the same in his
possession.
If there is a controversy as to who are heirs or shares
heard and decided as in ordinary cases
Effect of Final Decree of Distribution
(1) In rem and binding against the whole world.
(2) All persons having interest in the subject matter
involved, whether they are notified or not, are
equally bound.
(3) The court acquires jurisdiction over all persons
interested, through the publication of the notice
prescribed and any order that may be entered
therein is binding against all of them.
(4) The only instance where a party interested in a
probate proceeding may have a final liquidation
set aside is when he is left out by reason of
circumstances beyond his control or through
mistake or inadvertence not imputable to
negligence.
Uriarte vs. CFI (1970): A special proceeding
intended to effect the distribution of the estate of a
deceased person is a "probate matter" or a
proceeding for the settlement of his estate.
It is equally true, however, that testate proceedings,
for the settlement of the estate of a deceased
person take precedence over intestate proceedings
for the same purpose.
Thus, if in the course of intestate proceedings
pending before a court of first instance, it is found
that the decedent had left a last will, proceedings
for the probate of the latter should replace the
241
242
intestate proceedings even if at that stage an

administrator had already been appointed, the latter
being required to render final account and turn over
the estate in his possession to the executor
subsequently
appointed.
This,
however,
is
understood to be without prejudice; that should the
alleged last will be rejected or is disapproved, the
proceeding shall continue as an intestacy.
C. Remedy of an heir
entitled to residue but
not given his share
The better practice for the heir who has not
received his share is to demand his share through a
proper motion in the same probate or administrative
proceedings, or for reopening of the probate or
administrative proceedings if it had already been
closed, and not through an independent action.
[Guilas v. Judge of the CFI of Pampanga, (1972)]
D. Instances when probate

court may issue writ of
execution
(1) To satisfy the contributive shares of devisees,
legatees and heirs in possession of the
decedents assets
(2) To enforce payment of expenses of partition
(3) To satisfy the costs when a person is cited for
examination in probate proceedings
IX. TRUSTEES
A. Distinguished
from
executor/
administrator
B. Conditions of the Bond
C. Requisites for the removal and resignation
of a trustee
D. Grounds for removal and resignation of a
trustee
E. Extent of authority of trustee
A. Distinguished
executor
administrator
from
or
Araneta v. Perez (1962)]: A trustee, like an

executor/administrator, holds an office of trust,
particularly when the trustee acts as such under
judicial authority.
The duties of executor/administrator are however,
fixed and/or limited by law whereas those of the
trustee of an express trust are, usually governed by
the intention of the trustor or the parties, if
established by contract. Besides, the duties of
trustees may cover a wider range than those of
executor/administrator of the estate of deceased
persons.
B. Conditions of the Bond
Trustee must file bond before performing Duties

(1) Filed with the clerk of court
(2) Amount fixed by the judge
(3) Payable to the government of Philippines
(4) Sufficient and available for the protection of
any party in interest
If the trustee fails to furnish a bond as required by
the court, he fails to qualify as such. Nonetheless,
the trust is not defeated by such a failure to give
bond, he is considered to have declined or resigned
the trust.
When Exempt
(1) When testator has directed such exemption; or
(2) All persons beneficially interested in the trust,
request such exemption
Exemption may be cancelled at any time
Conditions
(1) Inventory
That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the time
of the making of such inventory shall have come
to his possession or knowledge.
Exemption from inventory:
(a) When trustee is not the original trustee
appointed
(b) Courts discretion
(c) If an inventory has already been filed
(2) Faithful management
That he will manage and dispose of all such
estate, and faithfully discharge his trust in
relation thereto, according to law and the will
of the testator or the provisions of the
instrument or order under which he is appointed
(3) Accounting
That he will render upon oath at least once a
year until his trust is fulfilled, unless he is
excused in any year by the court, a true account
of the property in his hands and the
management and disposition thereof, and will
render such other accounts as the court may
order
(4) Settlement of account and deliver estate.
That at the expiration of his trust he will settle
his account in court and pay over and deliver all
the estate remaining in his hands, or due from
him on such settlement, to the person or
persons entitled to thereto.
C. Requisites
for
the
removal
and
resignation of a trustee
(1) Petition by parties beneficially interested
(2) Due notice to the trustee
(3) Hearing
D. Grounds for removal

and resignation of a
trustee
Grounds for removal (ESIINU)
(1) Removal appears ESsential in the interest of
petitioner.
(2) Trustee is Insane or
(3) Otherwise INcapable of discharging his trust or
(4) Evidently Unsuitable
Resignation
He may resign but the court will determine if
resignation is proper
E. Extent of authority of
trustee
Nature of Possession
The possession of the property by the trustee is not
an adverse possession, but only a possession in the
name and in behalf of the owner of the same.
A trustee may acquire the trust estate by
prescription provided there is a repudiation of the
trust, such repudiation being open, clear and
unequivocal, known to the cestui que trust [Salinas
v. Tuazon (1931)].
Territoriality of authority of trustee
The powers of a trustee appointed by a Philippine
court cannot extend beyond the confines of the
territory of the Republic.
This is based on the principle that his authority
cannot extend beyond the jurisdiction of the
Republic, under whose courts he was appointed.
X. ESCHEAT
A. When to file
B. Requisites for filing of petition
C. Remedy of respondent against petition;
period for filing a claim
Escheat
It is an incident or attribute of sovereignty and rests
on the principle of ultimate ownership by the state
of all property within its jurisdiction.
It is a substantial right of the state and is not a claim
based on charity, gratuity or unearned benefit.
A. When to file
(1) Person dies intestate;
(2) Seized of real property in the Philippines; and
(3) Leaves no heir or person by law entitled to the
same
B. Requisites for filing of

petition
(1) A person died intestate

(2) He left no heirs or persons by law entitled to the
same
(3) Deceased left properties
Note:
Must be initiated by the Government through the
Solicitor General.
Fix a date and place for hearing, which shall not be
more than 6 months after the entry of the order
Direct a copy of the order to be published before the
hearing at least once a week for 6 successive weeks
in a newspaper of general circulation in the province
Court shall adjudge.
Procedure
Solicitor General or his representative in behalf of
the Republic of the Philippines to file the petition:
Deceased was a resident of the Philippinesin
the RTC of the province where he last resided
Deceased was a non-residentin the RTC of the
province in which he had an estate
Actions for reversion or escheat of properties
alienated in violation of the Constitution or of
any statutein the province where the land lies
in whole or in part
If the petition is sufficient in form and substance,

the court shall fix a date and place for the hearing
The court shall direct a copy of the order to be

published before the hearing at least once a week
for 6 consecutive weeks in some newspaper of
general circulation published in the province, as the
court shall deem best
The court shall hear the case and judge whether or

not the estate shall be escheated
If the court rules in favor of the Republic,

It shall assign the personal estate to the
municipality or city where the deceased last
resided, and the real estate to the municipalities
or cities, respectively, in which the same is
situated.
If the deceased never resided in the Philippines,
the whole estate may be assigned to the
respective municipalities or cities where the same
is located.
Such estate shall be for the benefit of public
schools, and public charitable institutions and
centers in said municipalities or cities.
Effect if Escheat is Granted
Personal estate goes to the municipality or city of
last residence
Real estate goes to the municipality or city where
same is situated
243
244
C. Remedy of respondent
against petition; period
for filing a claim
Period to appeal and claim the estate
Appeal must be made within 5 years from date of
judgment; otherwise, barred forever
Filed by whom
Devisee, legatee, heir, widow, widower, or other
person entitled to such estate appears
Such person shall have possession of and title to
the same, or if sold, the municipality or city shall
be accountable to him for the proceeds after
deducting reasonable charges for the care of the
estate
Period for filing claim
5 years from date the property was delivered to the
state
XI. GUARDIANSHIP
A. General powers and duties of guardians
B. Conditions of the bond of the guardian
C. Rule on Guardianship over minor
Guardianship
The power of protective authority given by law and
imposed on an individual who is free and in the
enjoyment of his rights, over one whose weakness on
account of his age or other infirmity renders him
unable to protect himself [Herrera].
Guardian
A person lawfully invested with power and charged
with the duty of taking care of a person who for
some peculiarity or status or defect of age,
understanding or self-control is considered incapable
of administering his own affairs [Herrera].
Basis: Parens Patriae
It is the States duty to protect the rights of
persons/individuals who because of age/incapacity
are in an unfavorable position vis--vis other parties
[Nery v. Lorenzo (1972)].
Kinds of Guardians (Regalado)
1. Legal Guardian deemed as guardian by
provision of law, without need of court
appointment (Art. 320, CC; Art. 225, FC)
2. Guardian ad Litem appointed by the court to
prosecute or defend a minor, insane or person
declared to be incompetent, in a court action.
3. Judicial Guardian appointed by the court in
pursuance to law, as guardians for insane
persons, prodigals, minor heirs of deceased war
veterans and other incompetent persons.
a. Guardian over the person.
b. Guardian of the property.
c. General Guardian has custody and care of
the wards person and property.
A. General
powers
duties of guardians
and
Care and custody of the person of his ward and

management of his property.
Management of his property only.
Management of property within the Philippines
(in case of non-resident ward).
B. Conditions of the bond of

the guardian
(Applicable for both Guardianship of Minors and
incompetents)
(1) To make and return to the court, within three
months after the issuance of his letters of
guardianship,
a
TRUE
AND
COMPLETE
INVENTORY of all the real and personal property
of his ward which shall come to his possession or
knowledge or to the possession or knowledge of
any other person in his behalf
(2) To FAITHFULLY EXECUTE THE DUTIES OF HIS
TRUST, to manage and dispose the property
according to this rule for the best interests of
the ward, and to provide for his proper care,
custody and education
(3) To render a TRUE AND JUST ACCOUNT of all the
property of the ward in his hands, and of all
proceeds or interest derived from them, and of
the management and disposition of the same, at
the time designated by this rule and such other
times as the court directs and at the expiration
of his trust, to settle his accounts with the court
and deliver and pay over all the property,
effects, and monies remaining in his hands, or
due from him on such settlement, to the person
lawfully entitled thereto
(4) To perform all orders of the court and such
other duties as may be required by law.
C. Rule on Guardianship
over minors
Parents as Legal Guardians (Art. 225, FC)
The father and the mother shall jointly exercise
legal guardianship over the property of their
unemancipated common child without the necessity
of a court appointment.
Where the market value of the property or the
annual income of the child exceeds P50,000:
(1) The parent concerned shall be required to
furnish a bond in such amount as the court may
determine, but not less than 10% of the value of
the property or annual income.
(2) A verified petition for approval of the bond shall
be filed in the Family Court of the place where
the child resides, or if the child resides in a
foreign country, in the proper court of the place
where the property or any part thereof is
situated.
In case of disagreement, the fathers decision shall
prevail, unless there is a judicial order to the
contrary.

Bautista vs. Bautista (1952): A father or mother,
as the natural guardian of the minor under parental
authority, does not have the power to dispose or
encumber the property of the latter. Such power is
granted by law only to a judicial guardian of the
wards property and only with courts approval.
Valencia vs. Lagdameo (): The remedy of vendees
prejudiced by the illegal transactions of a natural
guardian involving the property of the minor child
lies only against the natural guardian, not however
to recover ownership and possession of the
properties sold but only to recover damages.
Rule on Guardianship of Minors (A.M.

No. 03-02-05-SC)
Scope and Applicability
The father and the mother shall jointly exercise
legal guardianship over the person and property of
their unemancipated common child without the
necessity of a court appointment [Sec. 1]. However,
if the market value of the property or the annual
Income of the child exceeds P50,000.00, the parent
concerned shall furnish a bond [Sec. 16].
The Rule on Guardianship of Minors applies to
petitions for guardianship over the person or
property, or both, of a minor.
The Rules on Guardianship (Rules 92-98, RoC) apply
only to guardianship of incompetents other than a
minor.
Petition for Appointment of Guardian
Contents of petition
(1) Jurisdictional facts
(2) Name, age and residence of the prospective
ward
(3) Ground rendering the appointment necessary or
convenient
(4) Death of the parents of the minor or the
termination, deprivation or suspension of their
parental authority
(5) Remarriage of the minors surviving parent
(6) Names, ages, and residences of relatives within
the 4th civil degree of the minor, and of persons
having him in their care and custody
(7) Probable value, character and location of the
property of the minor
(8) Name, age and residence of the person for
whom letters of guardianship are prayed.
The petition shall be verified and accompanied by a
certification against forum shopping.
No defect in the petition or verification shall render
void the issuance of letters of guardianship.
Who may file Opposition
(1) Any interested person
(2) The social worker ordered to make the case
study report, if he finds that the petition for
guardianship should be denied (Sec. 9).
How: By filing a written opposition.
Who may file

(1) Resident minor
(a) Any relative or other person on behalf of a
minor
(b) The minor himself, if 14 years of age or
over
(c) The Secretary of DSWD or the Secretary of
DOH, in the case of an insane minor who
needs to be hospitalized.
(2) Non-resident minor
(a) Any relative or friend of such minor
(b) Anyone interested in his property,
expectancy or otherwise.
(3) Remarriage of his surviving parent, if the latter

is found unsuitable to exercise parental
authority
(4) When the best interests of the minor so require.
in
Where to file
Resident minor - Family Court of the province or
city where the minor actually resides
Non-resident minor - Family Court of the province
or city where his property or any part thereof is
situated
Grounds for filing
(1) Death, continued absence, or incapacity of his
parents
(2) Suspension, deprivation or termination of
parental authority
Grounds for filing

(1) Majority of the minor
(2) Unsuitability of the person for whom letters are
prayed.
245

Procedure
246
Filing of petition.
Court shall fix a time and place for hearing.
Notice requirement
Court shall cause reasonable notice to be given to:
The persons mentioned in the petition
The minor, if he is 14 years of age or over
- For non-resident minors, notice shall be given
to the minor by publication or any other
means as the court may deem proper.
The court may also direct other general or special
notice to be given.
Case Study Report

Court shall order a social worker to conduct a case
study of the minor and all the prospective guardians
and submit his report and recommendation to the
court for its guidance before the scheduled hearing.
Hearing
Compliance with notice requirement must be
shown.
The prospective ward shall be presented to the
court. If the minor is non-resident, the court
may dispense with his presence.
At the discretion of the court, the hearing on
guardianship may be closed to the public.
The records of the case shall not be released
without court approval.
Issuance or denial of letters of guardianship.
Service of final and executory judgment or order

upon the Local Civil Registrar of the municipality or
city where the minor resides and the Register of
Deeds of the place where his property or part
thereof is situated, who shall annotate the same in
the corresponding title, and report to the court their
compliance within fifteen days from receipt of the
order.
The Guardian
Order of Preference of Appointment (in default of
parents or a court-approved guardian)
(1) The surviving grandparent. 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 21
years of age, unless unfit or disqualified.
(3) The actual custodian of the minor over 21 years
of age, unless unfit or disqualified.
(4) Any other person, who in the sound discretion of
the court, would serve the best interests of the
minor
Qualifications
The court shall consider the guardians:
(1) Moral character
(2)
(3)
(4)
(5)
Physical, mental and psychological condition

Financial status
Relationship of trust with the minor
Availability to exercise the powers and duties of
a guardian for the full period of the
guardianship
(6) Lack of conflict of interest with the minor
(7) Ability to manage the property of the minor.
Powers and Duties
In general
(1) Guardian of resident minor: Care and
custody of the person of his ward and the
management of his property, or only the
management of his property.
(2) Guardian
of
non-resident
minor:
Management of all his property within the
Philippines
Specific duties
(1) To pay the just debts of the ward out of:
(a) Personal property and the income of
the real property of the ward, if the
same is sufficient
(b) Real property of the ward upon
obtaining an order for its sale or
encumbrance.
(2) To settle all accounts of his ward
(3) To demand, sue for, receive all debts due
him, or, with the approval of the court,
compound for the same and give discharges
to the debtor on receiving a fair and just
dividend of the property and effects
(4) To appear for and represent the ward in all
actions and special proceedings, unless
another person is appointed for that
purpose
(5) To manage the property of the ward
frugally and without waste, and apply the
income and profits thereon, insofar as may
be necessary, to the comfortable and
suitable maintenance of the ward. If such
income and profits be insufficient for that
purpose, to sell or encumber the real or
personal property, upon being authorized
by the court to do so
(6) To consent to a partition of real or personal
property owned by the ward jointly or in
common with others, upon:
(a) Authority granted by the court after
hearing
(b) Notice to relatives of the ward, and
(c) A careful investigation as to the
necessity and propriety of the proposed
action.
(7) To submit to the court a verified inventory
of the property of the ward:
(a) Within three months after his
appointment
(b) Annually, and
(c) Whenever
required
upon
the
application of an interested person.
(8) To report to the court any property of the
ward not included in the inventory which is
discovered, or succeeded to, or acquired by
the ward within 3 months after such
discovery, succession, or acquisition

(9) To render to the court for its approval an
accounting of the property:
(a) One year from his appointment
(b) Every year thereafter, and
(c) As often as may be required.
Bonds of Guardians
When filed: Before a guardian enters upon the
execution of his trust, or letters of guardianship
issue.
Amount: As determined by the Court.
Conditions: The guardian is:
(1) To make and return to the court, within three
months after the issuance of his letters of
guardianship, a true and complete inventory of
all the real and personal property of his ward
which shall come to his possession or knowledge
or to the possession or knowledge of any other
person in his behalf
(2) To faithfully execute the duties of his trust, to
manage and dispose the property according to
this rule for the best interests of the ward, and
to provide for his proper care, custody and
education
(3) To render a true and just account of all the
property of the ward in his hands, and of all
proceeds or interest derived from them, and of
the management and disposition of the same, at
the time designated by this rule and such other
times as the court directs and at the expiration
of his trust, to settle his accounts with the court
and deliver and pay over all the property,
effects, and monies remaining in his hands, or
due from him on such settlement, to the person
lawfully entitled thereto
(4) To perform all orders of the court and such
other duties as may be required by law.
Posting of new bond
Whenever necessary, the court may require the
guardian to post a new bond and may discharge from
further liability the sureties on the old bond.
Requirements
(1) Due notice to interested persons
(2) No injury must result to those interested in the
property.
Liability: In case of breach of any of its conditions,
the guardian may be prosecuted in the same
proceeding for the benefit of the ward or of any
other person legally interested in the property.
Reimbursement of Reasonable Expenses and
Payment of Compensation
The court may authorize reimbursement to the
guardian, other than a parent, of reasonable
expenses incurred in the execution of his trust.
The court may allow payment of compensation for
his services as the court may deem just, not
exceeding 10% of the net income of the ward, if any
otherwise, in such amount the court determines to
be a reasonable compensation for his services.
Embezzlement, Concealment, or Conveyance of

Wards Properties
The court may require any person suspected of
having embezzled, concealed, or disposed of any
money, goods or interest, or a written instrument
belonging to the ward or his property to appear for
examination concerning any thereof and issue such
orders as would secure the property against such
embezzlement, concealment or conveyance, upon
complaint of:
(1) The guardian or ward, or
(2) Any person having actual or prospective interest
in the property of the ward.
Selling and Encumbering the Property of the Ward
Grounds
(1) When the income of a property under
guardianship is insufficient to maintain and
educate the ward
(2) When it is for the benefit of the ward that his
personal or real property or any part thereof be
sold, mortgaged or otherwise encumbered, and
the proceeds invested in safe and productive
security, or in the improvement or security of
other real property.
How: Verified petition filed by the guardian.
Order to Show Cause
The court shall order the wards next of kin and all
persons interested in the property to appear at a
reasonable time and place and show cause why the
petition should not be granted.
At the time and place designated in the order to
show cause, the court shall hear the allegations and
evidence of the petitioner and next of kin, and other
persons interested, together with their witnesses,
and grant or deny the petition as the best interests
of the ward may require.
Order for Sale or Encumbrance
Contents:
(1) Grounds for the sale or encumbrance.
(2) Manner of sale (public or private)
(3) Time and manner of payment
(4) Security, if payment deferred
(5) Additional bond from guardian, if required.
Duration: Not more than 1 year, unless renewed.
Investment
Property
of
Proceeds
and
Management
of
The court may authorize and require the guardian to

invest the proceeds of sales or encumbrances, and
any other money of his ward in his hands, in real or
personal property, for the best interests of the
ward.
The court may make such other orders for the
management, investment, and disposition of the
property and effects, as circumstances may warrant.
247
248
Removal, Resignation, and Termination of

Guardianship
Removal
How: Upon reasonable notice to the guardian.
Grounds: The guardian:

(1) Becomes insane or otherwise incapable of
discharging his trust
(2) Is found to be unsuitable
(3) Wasted or mismanaged the property of the
ward
(4) Failed to render an account or make a
return for thirty days after it is due.
Resignation
Ground: Any justifiable cause.

Upon the removal or resignation of the
guardian, the court shall appoint a new one.
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.
Termination
Grounds
(1) The ward has come of age.
(2) The ward has died.
How
(1) Court motu proprio terminates guardianship
(2) Upon verified motion of any person allowed
to file a petition for guardianship.
The guardian shall notify the court of the fact of

coming of age or death of the ward within 10 days of
its occurrence.
The final and executory judgment or order removing
a guardian or terminating the guardianship shall be
served upon the Local Civil Registrar of the
municipality or city where the minor resides and the
Register of Deeds of the province or city where his
property or any part thereof is situated, who shall
enter the final and executory judgment or order in
the appropriate books in their offices.
XII. ADOPTION
A. Distinguish domestic adoption from intercountry adoption
B. Domestic Adoption Act
C. Inter-country Adoption
Adoption
A juridical act which creates between two persons a
relation similar to that which results from filiation.
Lahum vs. Sibulo (2003): Adoption is a privilege
governed by the states determination of what is for
the best welfare of the child.
A. Distinguish
domestic
adoption from inter-country
adoption
See Annex A.
B. Domestic Adoption Act

RA 8552 (Domestic Adoption Act) and the Rule on
Adoption govern the domestic adoption of Filipino
children.
Effects of adoption
Parental Authority (Sec.16)
All legal ties bet. biological parents and adoptee are
severed, and the same shall be vested on the
adopter, except if the biological parent is the spouse
of the adopter
Legitimacy (Sec.17)
The adoptee shall be considered legitimate
son/daughter of the adopter for all intents and
purposes, and entitled to all rights and obligations
provided by law to legitimate children born to them
without discrimination of any kind. Adoptee is
entitled to love, guidance, and support.
Succession (Sec.18)
Adopter and adoptee shall have reciprocal rights of
succession without distinction from legitimate
filiation, in legal and intestate succession. If
adoptee and his/her biological parents had left a
will, the law on testamentary succession shall
govern.
Book of Adoptions
The Clerk of Court shall keep a book of adoptions
showing the date of issuance of the decree in each
case, compliance by the Civil Registrar with the
courts order, and all incidents arising after the
issuance of the decree.
Confidentiality of Adoption Proceedings
All hearings in adoption cases, after compliance with
the jurisdictional requirements shall be confidential
and shall not be open to the public.
If the court finds that the disclosure of the
information to a third person is necessary for
security reasons or for purposes connected with or
arising out of the adoption and will be for the best
interests of the adoptee, the court may, upon proper
motion, order the necessary information to be
released, restricting the purposes for which it may
be used.
Instances when adoption may be rescinded

Rescission of Adoption of the Adoptee
Who may file

(1) Adoptee who is over 18 years of age
(2) If the adoptee is a minor, with the
assistance of the DSWD
(3) If the adoptee is over 18 years of age but
incapacitated, by his guardian or counsel.
Grounds: Committed by the adopter

(1) Repeated physical and verbal maltreatment
despite having undergone counseling
(2) Attempt on the life of the adoptee
(3) Sexual assault or violence
(4) Abandonment or failure to comply with
parental obligations.
Adoption, being in the best interests of the
child, shall not be subject to rescission by
the adopter.
However, the adopter may disinherit the
adoptee for causes provided in Article 919
of the Civil Code.
Where to file: Family Court of the city or

province where the adoptee resides.
When to file:
(1) Within 5 years after reaching age of
majority
(2) If he was incompetent at the time of the
adoption, within 5 years after recovery
from such incompetency.
Effects of rescission of adoption

(1) RESTORATION OF PARENTAL AUTHORITY to
original parent if adoptee is a minor.
(2) RECIPROCAL RIGHTS AND OBLIGATIONS of
adopter and adoptee are EXTINGUISHED .
(3) CANCELLATION of amended birth certificate and
RESTORE ORIGINAL.
(4) SUCCESSIONAL RIGHTS SHALL REVERT to its
status PRIOR TO ADOPTION, as of the date of
final judgment of rescission.
(5) VESTED RIGHTS shall be RESPECTED.
C. Inter-country
Adoption
RA 8043 (Inter-country Adoption Act) governs the
adoption of Filipino children by:
(1) Foreign nationals, and
(2) Filipino citizens permanently residing abroad.
When allowed
Inter-country Adoption as the Last Resort
The Inter-country Adoption Board (ICAB) shall ensure
that all possibilities for adoption of the child
under the Family Code (domestic adoption) have
been exhausted and that inter-country adoption is
in the best interest of the child (Sec. 7, RA 8043).
Functions of the RTC

(1) Filing of petition may be made with the Family
Court having jurisdiction over the place where
the child resides or may be found.
(2) Court shall determine whether or not petition is
sufficient in form and substance and a proper
case for inter-country adoption.
(3) Transmit the petition to the ICAB for
appropriate action.
Best interest of the minor standard

The Inter Country Adoption Board shall ensure that
all possibilities for adoption of the child under the
Family Code have been exhausted and that intercountry adoption is in the best interest of the child.
XIII. WRIT OF HABEAS CORPUS

A. Contents of the petition
B. Contents of the Return
C. Distinguish
peremptory
writ
from
preliminary citation
D. When not proper/applicable
E. When writ disallowed/discharged
F. Distinguish from writ of Amparo and
Habeas Data
G. Rules on Custody of Minors and Writ of
Habeas Corpus in Relation to Custody of
Minors (AM No. 03-04-04-SC)
WRIT OF HABEAS CORPUS
Essentially a writ of inquiry, granted to test the right
under which a person is detained, and to relieve a
person if such restrain is illegal
Can only be suspended in cases if in cases or
rebellion or invasion and when public interest
requires it (Art. III Sec. 15)
Vital purposes:
In General
(1) To obtain relief from illegal confinement
(2) To liberate those who may be imprisoned
without sufficient cause
(3) To deliver them from unlawful custody
In the case of minors
(1) To enable parents to regain custody of a minor
daughter, even though the latter be in the
custody of a third person of her own free will
(2) To resolve questions of custody of a minor
The underlying rationale is not the illegality if the
restraint but the right of custody
Who may issue the writ
(1) The SC,CA, and RTC have concurrent jurisdiction
to issue WHC
(2) Family courts have jurisdiction to hear petitions
for custody of minors and the issuance of the
WHC in relation to custody of minors
Moncupa v. Enrile (1986)
(a) Where a person continued to be unlawfully
denied one or more of his constitutional rights
(b) Where there is present denial of due process
(c) Where the restraint is not merely involuntary
but appear to be unnecessary
(d) Where a deprivation of freedom originally valid
has in light of subsequent developments become
arbitrary
The person concerned or those applying in his behalf
may still avail themselves of the privilege of the
249

writ.
250
Extends to all cases of illegal confinement or

detention by which any person any person is
deprived of his liberty, or by which the rightful
custody of any person is withheld from the person
entitled thereto.
Prime specification of the application for a writ of
habeas corpus is restraint of liberty.
Not an inquisition between private parties, but an
inquisition by the government proceedings in habeas
corpus are separate and distinct from the main case
from which the proceedings spring
Ex parte Bollman: the question whether one
shall be imprisoned is always distinct from the
question of whether the individual shall be
convicted or acquitted of the charge on which
he is tried, and therefore these questions are
separate, and may be decided in different
courts
In the case if People v. Valte (1922), it was
stated that the writ of habeas corpus is not
designed to interrupt the orderly administration
of the laws by a competent court acting within
the limits of its jurisdiction, but is available only
for the purpose relieving from illegal restraint
Proceedings on habeas corpus to obtain release from
custody under final judgment being in the nature of
collateral attack, the writ deals only with such
radical defects as render the proceeding or
judgment absolutely void, and cannot have the
effect of appeal, writ of error or certiorari, for the
purpose of reviewing mere error and irregularities in
the proceedings.
A release that renders a petition for a writ of habeas
corpus moot and academic must be one which is free
from involuntary restraint.
WHC may be used with writ of certiorari for purposes
of review:
The two writs may be ancillary to each other

where necessary to give effect to the
supervisory powers of higher courts
WHC reaches the body of the jurisdictional

matters, but not the record. Writ of certiorari
reaches the record but not the body
While generally, the WHC will not be granted

when there is and adequate remedy like writ of
error, appeal, or certiorari, it may still be
available in exceptional cases
Generally, WHC is not the proper remedy for the

correction of errors of fact or law
Exception: Error affects courts jurisdiction
(making the judgment void)
WHC does not lie where the petitioner has the

remedy of appeal or certiorari
WHC is not proper:

To assert or vindicate denial of right to bail
For correcting errors in appreciation of fact
or law
HC and not prohibition is the proper remedy for
reviewing proceedings for deportation of aliens
A. Contents
Petition
of
the
Application for the writ shall be by petition signed

and verified by the party for whose relief it is
intended, or by some person on his behalf
Some person any person who has a legally

justified interest in the freedom of the person
whose liberty is restrained or who shoes some
authorization to make the application
Shall set forth:
(1) That the person in whose behalf the application
is made is imprisoned or restrained of his liberty
(2) The officer or name of the person by whom he is
so imprisoned or retrained or if both are
unknown or uncertain, such officer or person
may be described by an assumed appellation,
and the person who is served with the writ shall
be deemed the person intended
(3) The place where he is so imprisoned or
restrained, if known
(4) A copy of the commitment or cause of detention
of such person, if it can be procured without any
legal authority, such fact shall appear.
Procedure:
(1) Application for the writ by petition
(2) Grant by court or judge
(3) Clerk of Court issues the writ under the seal of
court (in case of emergency, by the judge
himself)
(4) Service:
- By whom: sheriff or other proper officer
- How: leaving the original with the person to
whom it is directed and preserving a copy
on which to make return
- To whom: officer in custody or any officer
(when in custody of person other than an
officer)
(5) Execution officer bring the person before the
judge
B. Contents
Return
of
the
Made by the person or officer in whose custody the

prisoner is found:
(1) Whether he has or has not the party in his
custody or power, or under restraint
(2) If he has the party in his custody or power, or
under restraint, the authority and the true and
whole cause thereof, set forth at large, with a
copy of the writ, order execution, or other
process, if any, upon which the party is held
(3) If the party is in his custody or power or is
restrained by him, and is not produced,
particularly the nature and gravity of the
sickness or infirmity of such party by reason of
which he cannot, without danger, be bought
before the court or judge
(4) If he has had the party in his custody or power,
or under restraint, and has transferred such
custody or restraint to another, particularly to

whom, at what time, for what cause, and by
what authority such transfer was made.
If it appears that the prisoner is in custody under a

warrant of commitment in pursuance of law, the
return shall be considered prima facie evidence of
the cause of restraint, but if he is restrained of his
liberty by any alleged private authority, the return
shall be considered only as a plea of the facts
therein set forth, and the party claiming the custody
must prove such facts.
Even if the arrest of a person is illegal, supervening

events may Bar his release or discharge form
custody
The legality of the detention is inquired into at

the earliest, the application for a WHC
Among the supervening events is the issuance of

a judicial process (defined as a writ, warrant,
subpoena, or other formal writing issued by
authority of law)
Another supervening event is the filing before a

trial court a complaint which issued a hold
departure order and denied motion to dismiss
and to grant bail (Velasco v. CA,1995)
Filing of an information for the offense for

which the accused is detained Bars the
availability of WHC
C. Distinguish
Peremptory Writ from
Preliminary Citation
Improper arrest or lack of preliminary investigation

is not a valid ground for the issuance of WHC. The
proper remedy is a motion to quash warrant of arrest
and/or information before the trial court
Preliminary citation requires the respondent to

appear and show cause why the peremptory writ
should not be granted
Posting of a bail is not a waiver of the right to

challenge the validity of the arrest, and therefore
the right to resort to WHC (Revised Rules of Crim Pro
Sec. 26)
The return or statement shall be signed by the

person who makes it; and shall also be sworn by him
if the prisoner is not produced, and in all other
cases, unless the return is made and signed by a
sworn public officer in his official capacity.
Peremptory writ unconditionally commands the

respondent to have the body of the detained person
before the court at a time and place therein
specified
D. When Writ Not Proper

or Applicable
WHC will not issue where:
(1) The person alleged to be restrained of his
liberty is in custody of an officer
(2) Under process issued by the court or judge
(3) By virtue of a judgment or order of a court of
record
(4) The Court or judge had which has jurisdiction to
issue the process, render the judgment or make
the order.
The operative act is detention or restraint (whether
or not physical). If there is none, no WHC will issue
despite the possibility of respondent being liable to
civil, criminal, or administrative action
Judicial discretion is exercised in issuance of the
writ, and will not issue as a matter of course
General Rule: the release, whether permanent or
temporary, of a detained person renders the petition
for habeas corpus moot and academic
Exception: Unless 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
General Rule: WHC will not issue where the person
alleged to be restrained of his liberty is in custody of
an officer under a process issued by the court which
has jurisdiction to do so
A person discharged on bail is not entitled to WHC,

because such person is not imprisoned or restrained
of his liberty in such a way as to entitle him to the
WHC
E. When Discharge Not

Authorized
Discharge from custody will not be allowed if:
(1) Jurisdiction appears after the writ is allowed,
despite any informality or defect in the process,
judgment, or order.
(2) Person is charged with or convicted of an
offense in the Philippines
(3) Person is suffering imprisonment under lawful
judgment
(4) If it appears that the prisoner was lawfully
committed, and is plainly and specifically
charged in the warrant of commitment with an
offense punishable by death
(5) Even if the arrest of a person is illegal, due to
supervening events
(a) Issuance of a judicial process (defined as a
writ, warrant, subpoena, or other formal
writing issued by authority of law)
(b) Another supervening event is the filing
before a trial court a complaint which
issued a hold departure order and denied
motion to dismiss and to grant bail (Velasco
v. CA,1995)
(c) Filing of an information for the offense for
which the accused is detained bars the
availability of WHC
Improper arrest or lack of preliminary investigation
is not a valid ground for the issuance of WHC
Proper remedy is a motion to quash warrant of arrest
251

and/or information before the trial court
252
A person discharged on bail is not entitled to WHC,

because such person is not imprisoned or restrained
of his liberty in such a way as to entitle him to the
WHC
F. Distinguished
from
Writ of Amparo and
Habeas Data
See Annex B.
G. Custody of Minors and

Writ of Habeas Corpus
in Relation to Custody
of Minors (A.M. No.
03-04-04-SC)
Applicability
Applies to petitions for custody of minors and
writs of habeas corpus in relation thereto.
Rules of Court shall apply suppletorily.
Petition for Rightful Custody
Verified petition for the rightful custody of a
minor may be filed by any person claiming such
right.
Party against whom it may be filed shall be
designated as the respondent.
Filed with the Family Court of the province or
city where the petitioner resides or where the
minor may be found.
Contents:
(1) The personal circumstances of the petitioner
and of the respondent
(2) The name, age and present whereabouts of the
minor and his or her relationship to the
petitioner and the respondent
(3) The material operative facts constituting
deprivation of custody
(4) Such other matters which are relevant to the
custody of the minor
Verified and accompanied with a certificate against
forum shopping signed by the petitioner personally.
If court is satisfied that the petition is sufficient in
form and substance, it shall direct the clerk of court
to issue summons, which shall be served together
with a copy of the petition personally on the
respondent.
Answer to the Petition
General rule: Motion to dismiss the petition is not
allowed. Any other ground that might warrant the
dismissal of the petition may be raised as an
affirmative defense in the answer.
Exception: On the ground of lack of jurisdiction over
the subject matter or over the parties.
Personally verified and filed within 5 days after

service of summons.
Upon the filing of the verified answer or the
expiration of the period to file it, the court may
order a social worker to make a case study of
the minor and the parties and to submit to the
court at least 3 days before pre-trial.
Mandatory pre-trial
Notice - 15 days after the filing of the answer or
the expiration of the period to file answer, the
court shall issue an order:
(1) Fixing a date for the pre-trial conference
(2) Directing the parties to file and serve their
respective pre-trial briefs
(3) Requiring the respondent to present the
minor before the court.
The notice of its order shall be served
separately on both the parties and their
respective counsels.
Pre-trial brief contains the following:
(1) A statement of the willingness of the
parties to enter indicating its terms
(2) A concise statement of their respective
claims
(3) Admitted facts and proposed stipulations of
facts
(4) The disputed factual and legal issues
(5) All the evidence to be presented
(6) The number and names of the witnesses and
their respective affidavits
(7) Such other matters as the court may require
to be included.
Failure to file the pre-trial brief or to comply
with its required contents has same effect as
failure to appear at the pre-trial.
If the petitioner fails to appear personally at the
pre-trial, the case shall be dismissed.
Unless his counsel or a duly authorized
representative appears in court and proves a
valid excuse for the non-appearance of the
petitioner.
If the respondent has filed his answer but fails
to appear at the pre-trial, the petitioner shall
be allowed to present his evidence ex parte.
The Court shall then render judgment on the
basis of the pleadings and the evidence thus
presented.
At the pre-trial, the parties may agree on the
custody of the minor. If the parties fail to agree,
the court may refer the matter to a mediator
who shall have 5 days to effect an agreement
between the parties. If the issue is not settled
through mediation, the court shall proceed with
the pre-trial.
After an answer has been filed or after
expiration of the period to file it, the court may
issue a provisional order awarding custody of the
minor to:
(1) Both parents jointly

(2) Either parent
(3) The grandparent, or if there are several
grandparents, the grandparent chosen by
the minor over 7 years of age and of
sufficient discernment
(4) The eldest brother or sister over 21 years of
age
(5) The actual custodian of the minor over 21
years of age
(6) Any other person or institution the court
may deem suitable.
Interim Reliefs
Temporary visitation rights - 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.
The temporary custodian shall give the court
and non custodial parent or parents at least 5
days' notice of any plan to change the residence
of the minor or take him out of his residence for
more than 3 days
Hold Departure Order the minor child shall
not be brought out of the country without prior
order from the court while the petition is
pending.
- The Court, motu proprio or upon application
under oath, may issue ex parte a hold
departure order, addressed to the Bureau of
Immigration and Deportation (BID), directing
it not to allow the departure of the minor
from the Philippines without court permission.
- The Family Court issuing the hold departure
order shall furnish the DFA and the BID of the
DOJ a copy of the hold departure order within
24 hours from its issuance.
- The court may recall the hold departure order
motu proprio or upon verified motion of any
of the parties after summary hearing.
Protection Order (PO)- court may issue a PO
requiring any person:
(1) To stay away from the home, school,
business, or place of employment of the
minor, other parent or any other party, or
from any other specific place
(2) To cease and desist from harassing,
intimidating, or threatening such minor or
the other parent or any person to whom
custody of the minor is awarded
(3) To refrain from acts or omission that create
an unreasonable risk to minor
(4) To permit a parent, or a party entitled to
visitation by a court order or a separation
agreement, to visit the minor at stated
periods
(5) To permit a designated party to enter the
residence during a specified period of time
in order to take personal belongings not
contested in a proceeding pending with the
Family Court
(6) To comply with such other orders as are

necessary for the protection of the minor.
Judgment
Court shall render judgment awarding the custody of
the minor to the proper party considering the best
interests of the minor.
If both parties are unfit to have the care and custody
of the minor, the court may designate either the
paternal or maternal grandparent of the minor, or
his oldest brother or sister, or any reputable person
to take charge of such minor, or commit him to any
suitable home.
Court may order either or both parents to give an
amount necessary for the support, maintenance and
education
of
the
minor,
irrespective
of
custodianship.
The court may also issue any order that is just and
reasonable permitting the parent who is deprived of
the care and custody of the minor to visit or have
temporary custody.
Appeal
Appeal from the decision shall be allowed, unless
the appellant has filed a motion for reconsideration
or new trial within 15 days from notice of judgment.
An aggrieved party may appeal from the decision by
filing a Notice of Appeal within 15 days from notice
of the denial of the motion for reconsideration or
new trial and serving a copy on the adverse parties.
Writ of Habeas Corpus in Relation to Custody of
Minors
A verified petition for a writ of habeas corpus
involving custody of minors filed with the Family
Court. The writ shall be enforceable within the
judicial region the Family Court belongs.
However, the petition may be filed with a regular
court in the absence of the presiding judge of the
Family Court provided that the regular court shall
refer the case to the Family Court as soon as its
presiding judge returns to duty.
Petition may also be filed with the appropriate
regular courts in places where there are no Family
Courts.
The petition may be filed with the SC, CA, or with
any of its members and 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.
Upon return of the writ, the court shall decide the
issue on custody of minors.
253

official or employee, or of a private individual or
entity
254
XIV. WRIT OF AMPARO

A. Coverage
B. Distinguish from habeas corpus and
habeas data
C. Differences between Amparo and search
warrant
D. Who may file
E. Contents of return
F. Effects of failure to file return
G. Omnibus waiver rule
H. Procedure for hearing
I. Institution of separate action
J. Effect of filing of a criminal action
K. Consolidation
L. Interim reliefs available to petitioner and
respondent
M. Quantum of proof in application for
issuance of writ of Amparo
WRIT OF AMPARO
Literally means to protect
Came originally from Mexico and evolved into
many forms
(1) Amparo libertad for protection of personal
freedom
(2) Amparo contra leyes for judicial review of
the constitutionality of statutes
(3) Amaparo casacion judicial review of
constitutionality and legality of judicial
decisions
(4) Amparo agrario for protection of
peasants rights
AM No 7-9-12-SC (Rules on the Writ of Amparo)
was promulgated by the Supreme Court by
virtue of the 1987 Constitution stating that the
SC has the power to [p]romulgate rules
concerning the protection and enforcement of
constitutional rights (Art VIII Sec. 5).
- Interpreted as the additional power to
promulgate rules to protect and enforce rights
guaranteed by the fundamental law of the
land.
Yano v. Sanchez (2010): The failure to establish
that the public official observed extraordinary
diligence in the performance of duty does not result
in the automatic grant of the privilege of the amparo
writ. It does not relieve the petitioner from
establishing his or her claim by substantial evidence.
The omission or inaction on the part of the public
official provides, however, some basis for the
petitioner to move and for the court to grant certain
interim reliefs.
A. Coverage
Remedy available to any person whose right to life,
liberty and security is violated or threatened with
violation by an unlawful act or omission of a public
(1) Extralegal killings (killings committed without

due process of law) and
(2) Enforced disappearances (Sec. of National
Defense v. Manalo 2008), the elements of which
are:
(a) An arrest, detention or abduction of a
person by a government official or
organized groups or private individuals
acting with the direct or indirect
acquiescence of the government
(b) The refusal of the State to disclose the fate
or whereabouts of the person concerned or
a refusal to acknowledge the deprivation of
liberty which places such persons outside
the protection of law
Enumerates the constitutional rights protected by
the writ, which is only the right to life, liberty and
security of persons.
Limits the coverage because other constitutional
rights are already protected through different
remedies.
However, the coverage is still broader compared to
other jurisdictions:
(1) Philippine writ covers both actual and
threatened violations of constitutional rights
(2) Covers not only the public but also private
individual and entities
Right to security as a guarantee of protection by
the government, is violated by the apparent threat
to the life, liberty and security of their person.
Secretary of Justice v. Manalo (supra): Even if the
respondents have escaped from captivity and are
physically free, there is a continuing violation of
their right to security because there is a violation of
freedom from threat by the apparent threat to
life, liberty and security of their person from the
following facts:
(1) Threat of killing their families if they tried
to escape
(2) Failure of the military to protect them from
abduction
(3) Failure of the military to conduct effective
investigation
B. Distinguish from Writ of Habeas

Corpus and Habeas Data
See Annex C
C. Distinguish Writ of
From Search Warrant
Amparo
Secretary of Defense v. Manalo (2008): The

production order under the Amparo Rule should not
be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987
Constitution.

The Constitutional provision is a protection of the
people from the unreasonable intrusion of the
government, not a protection of the government
from the demand of the people such as respondents.
Instead, the Amparo production order may be
likened to the production of documents or things
under Section 1, Rule 27 of the Rules of Civil
Procedure i.e. Upon motion of any party showing
good cause therefor, the court in which an action is
pending may (a) order any party to produce and
permit the inspection and copying or photographing,
by or on behalf of the moving party, of any
designated documents, papers, books of accounts,
letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence
material to any matter involved in the action and
which are in his possession, custody or control...
D. Who may file

(1) Aggrieved party
(2) Any member of the immediate family namely:
the
spouse, children and parents of the
aggrieved party
(3) Any ascendant, descendant or collateral relative
of the aggrieved party within the fourth civil
degree of consanguinity or affinity, in default of
those mentioned in the preceding paragraph or
(4) Any concerned citizen, organization, association
or institution if there is no known member of
the immediate family or relative of the
aggrieved party.
Petition may be filed by the aggrieved party or by
any qualified person or entity
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties to
file similar petitions
Order which must be followed by those who can sue
for the writ i.e. filing of the petition by an
authorized party on behalf of the aggrieved party
suspends the right of all others. This provides for the
order which must be followed by those who can sue
for the writ
(1) Necessary for the prevention of indiscriminate
and groundless filing of petitions for amparo
which may even prejudice the right to life,
liberty or security of the aggrieved party
(2) Untimely resort to the writ by a non-member of
the family may endanger the life of the
aggrieved party
If authorized by (1) or (2), (3) may file
Canlas v. NAPICO (2008): The claim to dwelling,
assuming there is still a right despite the adverse
final and executory judgment, does not constitute
right to life, liberty and security.
There is,
therefore, no legal basis for the issuance of the writ
of amparo.
Where:
(1) RTC where the threat, act or omission was

committed or any of its element occurred
(2) Sandiganbayanunlike the writ of habeas
corpus, because public officials and employees
will be respondents in amparo petitions
(3) Court of Appeals
(4) Supreme Court
(5) Any justice of such courts
May be filed or any day, including Saturdays,
Sundays, and holidays; from morning until evening
Contents:
(1) The personal circumstances of the petitioner;
(2) The name and personal circumstances of the
respondent responsible for the threat, actor
omission or if the name is unknown or uncertain,
the respondent may be described by an assumed
appellation;
(3) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of the
respondent, and how such threat or violation is
committed with the attendant circumstances
detailed in supporting affidavits;
(4) The investigation conducted, if any, specifying
the names, the personal circumstances and
addresses of the investigating authority or
individuals, as well as the manner and conduct
of the investigation, together with any report;
(5) The actions and recourses taken by the
petitioner to determine the fate or whereabouts
of the aggrieved party and the identity of the
person responsible for the threat, act or
omission; and
(6) The relief prayed for.
May include a general prayer
Signed and verified
E. Contents of Return
The respondent shall file a verified written return
together with supporting affidavits within 72 hours
after service of the writ.
Contents:
(1) The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security of
the aggrieved party, through any act or omission
(2) The steps or actions taken by the respondent to
determine the fate or whereabouts of the
aggrieved party and the person responsible for
the threat, act or omission
(3) All relevant information in the possession of the
respondent pertaining to the threat, act or
omission against the aggrieved party and
(4) If the respondent is a public official or employee
the return shall further state the actions that
have been or will still be taken[...].
(5) The return shall also state matters relevant to
the investigation, its resolution and the
prosecution of the case.
255
256
F. Omnibus Waiver Rule

Defenses not pleaded deemed waived.
All defenses shall be raised in the return, otherwise,
they shall be deemed waived.
G. Effect of Failure to File a

Return
In case the respondent fails to file a return, the
court, justice or judge shall proceed to hear the
petition ex parte.
H. Procedure for Hearing on the

Writ
Summary Hearing
Hearing on the petition shall be summary.
BUT: The court, justice, or judge may call for a
preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations
and admissions from the parties.
Prohibited Pleadings and Motions
(1) Motion to dismiss
(2) Motion for extension of time to file return,
opposition, affidavit, position paper and other
pleadings
(3) Dilatory motion for postponement
(4) Motion for a bill of particulars
(5) Counterclaim or cross-claim
(6) Third-party complaint
(7) Reply
(8) Motion to declare respondent in default
(9) Intervention
(10) Memorandum
(11) Motion for reconsideration of interlocutory
orders or interim relief orders and
(12) Petition for certiorari, mandamus or prohibition
against any interlocutory order.
Allows motion for new trial and petition for relief
from judgment
I. Institution of Separate Actions

The Rule shall not preclude the filing of separate
criminal, civil or administrative actions.
Neither does the writ of amparo suspend the filing of
criminal, civil or administrative actions
But a claim for damages should instead be filed in a
proper civil action.
If the evidence so warrants, the amparo court may
refer the case to the Department of Justice for
criminal
prosecution,
because
the
amparo
proceeding is not criminal in nature and will not
determine the criminal guilt of the respondent.
J. Effect of Filing of a Criminal

Action
When a criminal action has been commenced, NO
SEPARATE PETITION for the writ shall be filed.
Reliefs under the writ shall be available by motion in
a criminal case.
Procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
amparo.
K. Consolidation
When a criminal action is filed subsequent to the
filing of a petition for the writ, the latter shall be
consolidated with the criminal action.
After consolidation, the procedure under this Rule
shall continue to apply to the disposition of the
reliefs on the petition.
L. Interim Reliefs Available

Petitioner and Respondent
to
Upon filing of the petition or at any time before

final judgment
Interim Reliefs available to the Petitioner
(1) Temporary Protection Order. The court,
justice or judge, upon motion or motu proprio,
may order that the petitioner or the aggrieved
party and any member of the immediate family
be protected in a government agency or by an
accredited person or private institution capable
of keeping and securing their safety. If the
petitioner is an organization, association or
institution referred to in Section 3(c) of this
Rule, the protection may be extended to the
officers concerned.
The SC shall accredit the persons and private
institutions that shall extend temporary
protection to the petitioner or aggrieved party
and any member of the immediate family, in
accordance to the guidelines which it shall
issue.
The accredited persons and private persons and
private institutions shall comply with the rules
and conditions that may be imposed by the
court, justice or judge.
- Different from the inspection and production
order in that the temporary protection order
and the witness protection order do not need
a verification and may be issued motu proprio
or ex parte
(2) Inspection Order. The court, justice or judge
upon verified motion and after due hearing may
order any person in possession or control of a
designated land or other property, to permit
entry for the purpose of inspecting, measuring,

surveying, or photographing the property or any
relevant object or operation thereon.
The motion shall state in detail the place or
places to be inspected. It shall be supported by
affidavits or testimonies of witnesses having
personal
knowledge
of
the
enforced
disappearances or whereabouts of the aggrieved
party.
If the motion is opposed on the ground of
national security or of the privileged nature of
the information, the court, justice or judge may
conduct a hearing in chambers to determine the
merit of the opposition.
The movant must show that the inspection order
is necessary to establish the right of the
aggrieved party alleged to be threatened or
violated.
The inspection order shall specify the person or
persons authorized to make the inspection and
the date, time, place and manner of making the
inspection and may prescribe other conditions to
protect the constitutional rights of all parties.
The order shall expire five (5) days after the day
of its issuance, unless extended for justifiable
reasons.
- Requires hearing, may be availed of both the
petitioner and the respondent
- If the court, justice or judge gravely abuses
his or her discretion in issuing the inspection
order, the aggrieved party is not precluded
from filing a petition for certiorari with the
Supreme Court
(3) Production Order. The court, justice or judge,
upon verified motion and after due hearing may
order any person in possession, custody or
control of any designated documents, papers,
books, accounts, letters, photographs, objects
or tangible things, or objects in digitized or
electronic form which constitute or contain
evidence relevant to the petition or the return,
to produce and permit their inspection, copying
or photographing by or on behalf of the movant.
The motion may be opposed on the ground of
national security or of the privileged nature of
the information, in which case the court, justice
or judge may conduct a hearing in chambers to
determine the merit of the opposition.
The court, justice or judge shall prescribe other
conditions to protect the constitutional rights of
all the parties.
- Only granted upon motion and hearing
- Not the same as search warrant for law
enforcement under Art. III, Sec. 2 of the
Constitution since the latter is a protection of
the people from unreasonable intrusion of the
government, not a protection of the
government from the demand of the people
such as respondents
- More similar to production of documents or

things under Sec. 1 Rule 27 of Rules of Civil
Procedure
(4) Witness Protection Order. The court, justice
or judge, upon motion or motu proprio, may
refer the witnesses to the Department of Justice
for admission to the Witness Protection,
Security and Benefit Program, pursuant to
Republic Act No. 6981.
The court, justice or judge may also refer the
witnesses to other government agencies, or to
accredited persons or private institutions
capable of keeping and securing their safety.
Interim Reliefs available to the Respondent
Inspection Order
Production Order
Requisites:
(1) Verified motion of the respondent
(2) Due hearing
(3) Affidavits or testimonies of witnesses having
personal knowledge of the defenses of the
respondent.
M. Quantum of Proof in Application

for Issuance of Writ: Substantial
Evidence
The parties shall establish their claims by substantial
evidence.
Respondent public official or employee cannot
invoke the presumption that official duty has been
regularly performed to evade responsibility or
liability
Respondent who is a private individual or entity must
prove that ordinary diligence as required by
applicable laws, rules and regulations was observed
in the performance of duty.
Respondent who is a public official or employee
must prove that extraordinary diligence as required
as required by the applicable laws, rules and
regulations was observed in the performance of
duty.
Sec. of Justice v. Manalo (supra): With the secret
nature of an enforced disappearance and the torture
perpetrated on the victim during detention, it
logically holds that much of the information and
evidence of the ordeal will come from the victims
themselves
Their statements can be corroborated by other
evidence such as physical evidence left by the
torture or landmarks where detained.
257
258
XV. CHANGE OF NAME AND

CANCELLATION OR CORRECTION
OF ENTRIES IN THE CIVIL
REGISTRY
A. Differences under Rule 103, RA 9048 and
Rule 108
B. Grounds for change of name
A. Differences
under
the
Applicable Rules (Rule 103,
Rule 108, RA 9048)
See Annex D
B. Grounds for change of name

See Annex D
Jurisprudence
Laperal vs. Republic (1962): Legal separation is not
a ground for the female spouse to apply for a change
of name under Rule 103.
No Yao Siong v. Republic (1966): The name that
can be changed is the name that appears in the civil
register, and not in the baptismal certificate or that
which the person is known in the community.
Ong Huan Tin v. Republic (1967): An alien may
petition for change of name but he must be
domiciled in the Philippines.
Oshito vs. Republic (1967): Verification is a formal,
not a jurisdictional, requirement. The lack of
verification is not a ground for dismissing the
petition. However, before setting the petition for
hearing, the court should have required the
petitioner to have the petition verified.
Go Chiung Beng vs. Republic (1972): All aliases of
the applicant must be set forth in the petitions
title. Such defect is fatal, even if said aliases are
contained in the body of the petition.
Secan Kok vs. Republic (1973): A change of name
granted by the court affects only a petitioner. A
separate petition for change of name must be filed
for his/her spouse and children.
Silverio vs. Republic (2007): A persons first name
cannot be changed on the ground of sex
reassignment. RA 9048 does not sanction a change of
first name on the ground of sex reassignment. Before
a person can legally change his given name, he must
present proper or reasonable cause or any
compelling reason justifying such change. In
addition, he must show that he will be prejudiced by
the use of his true and official name. Silverio failed
to show, or even allege, any prejudice that he might
suffer as a result of using his true and official name.
Rather
than
avoiding
confusion,
changing
petitioners first name may only create grave

complications in the civil registry and the public
interest.
No law allows the change of entry in the birth
certificate as to sex on the ground of sex
reassignment. RA 9048 only allows correction of
clerical or typographical errors. A correction in the
civil registry involving the change of sex is not a
mere clerical or typographical error. The birth
certificate of petitioner contained no error. All
entries therein, including those corresponding to his
first name and sex, were all correct. No correction is
necessary.
People vs. Cagandahan (2008): Intersexuality is a
valid ground for change of name and change of entry
of sex in the civil registry. Where the person is
biologically or naturally intersex the determining
factor in his gender classification would be what the
individual, having reached the age of majority, with
good reason, thinks of his sex. Sexual development
in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity
that the gender of such persons is fixed.
Failure to implead the local civil registrar as well as
all persons who have or claim any interest did not
render the petition fatally defective. Cagandahan
furnished the local civil registrar a copy of the
petition, the order to publish, and all pleadings,
orders or processes in the course of the proceedings.
There was therefore substantial compliance of the
provisions of Rules 103 and 108 of the Rules of
Court.
XVI. ABSENTEES
A. Purpose of the Rule
B. Who may file; when to file
A. Purpose of the Rule

IN RE: PETITION FOR DECLARATION OF ABSENCE
OF ROBERTO L. REYES (1986): The declaration of
absence made in accordance with the provisions of
the Civil Code has for its SOLE PURPOSE to enable
the taking of the necessary precautions for the
administration of the estate of the absentee.
There is a need to have a person judicially declared
an absentee when:
(1) he has properties which have to be taken cared
of or administered by a representative
appointed by the Court (Article 384, Civil Code);
(2) the spouse of the absentee is asking for
separation of property (Article 191, Civil Code);
or
(3) his wife is asking the Court that the
administration of an classes of property in the
marriage be transferred to her (Article 196, Civil
Code).
B. Who may file; when to

file
Who may file
Petition for Appointment of a Representative
(1) Any interested party
(2) Relative
(3) Friend
Petition for Declaration of Absence and
Appointment of Trustee or Administrator
(1) The spouse present
(2) The heirs instituted in a will, who may
present an authentic copy of the same
(3) The relatives who would succeed by the law
of intestacy
(4) Those who have over the property of the
absentee some right subordinated to the
condition of his death.
When to file
Petition for Appointment of a Representative When a person:
(1) Disappears
from
his
domicile,
his
whereabouts being unknown
(2) Has not left an agent to administer his
property or the power conferred upon the
agent has expired.
Petition for Declaration of Absence and
Appointment of Trustee or Administrator
After 2 years:
(1) From the disappearance of and without
any news from the absentee OR
(2) Since the receipt of the last news about
him.
After 5 years, if the absentee left an
administrator of his property.
XVII. CANCELLATION OR
CORRECTION OF ENTRIES IN THE
CIVIL REGISTRY
A. Entries subject to cancellation or
correction under Rule 108, in relation to
RA 9048
A. Entries subject to cancellation

or correction under Rule 108,
in relation to RA 9048
Under RULE 108: SUBSTANTIAL CHANGES in entries
in the civil registry, excluding name which is
governed by Rule 103.
Substantial Change change that affects the civil
status, citizenship, or nationality of a party.
(1) Births
(2) Marriage
(3) Deaths
(4) Legal separations
(5) Judgments of annulments of marriage
(6) Judgments declaring marriages void from the

beginning
(7) Legitimations
(8) Adoptions
(9) Acknowledgments of natural children
(10) Naturalization
(11) Election, loss or recovery of citizenship
(12) Civil interdiction
(13) Judicial determination of filiation
(14) Voluntary emancipation of a minor
(15) Changes of name
Under RA 9048: CLERICAL or TYPOGRAPHICAL
ERRORS
Clerical Error: A mistake committed in the
performance of clerical work in writing, copying,
transcribing or typing an entry in the civil register
that:
(1) Is harmless and innocuous.
(2) Is visible to the eyes or obvious to the
understanding (Patent)
(3) Can be corrected or changed only by reference
to other existing record or records
(4) Does not involve the change of nationality, age,
status or sex of the petitioner.
Such changes have public interest implications and
must only be made upon approval of the Court.
Silverio vs. Republic (2007): RA 9048 now governs
the change of first name. It vests the power and
authority to entertain petitions for change of first
name to the city or municipal civil registrar or consul
general concerned. Under the law, jurisdiction over
applications for change of first name is now
primarily
lodged
with
the
aforementioned
administrative officers. The intent and effect of the
law is to exclude the change of first name from the
coverage of Rules 103 and 108, until and unless an
administrative petition for change of name is first
filed and subsequently denied. It likewise lays down
the corresponding venue, form and procedure. In
sum, the remedy and the proceedings regulating
change of first name are primarily administrative in
nature, not judicial.
NOTE: The procedure recited in Rule 103 regarding
change of name and in Rule 108 concerning the
cancellation or correction of entries in civil registry
are separate and distinct. They may not be
substituted one for the other. If both reliefs are to
be sought in the same proceedings all the
requirements of Rule 103 and 108 must be complied
with. [Republic v. Valencia (1986)]
XVIII. APPEALS IN SPECIAL

PROCEEDING
A. Judgments and orders for which appeal
may be taken
B. When to appeal
C. Modes of appeal
D. Rule on Advance Distribution
259
260
A. Judgments and orders for

which appeal may be taken
(1) If it allows or disallows a will
(2) If it wholly determines who are the lawful heirs
or the distributive shares
(3) If it wholly or partially allows or disallows a
claim against a decedents estate, or any claim
presented on the decedents estate, or any
claim presented on the estates behalf on offset
to claim against it
(4) If
it
settles
the
account
of
an
executor/administrator/trustee/guardian
(5) If it constitutes a final determination in the
lower court of the rights of the party appealing
in proceedings relating to estate settlement or
administration of a trustee/guardian
Exception: Appointment of a special
administrator is not appealable
- Remedy: Petition for certiorari under Rule 65,
if there is grave abuse of discretion.
(6) If it is the final order/judgment rendered in the
case, and affects the substantial rights of the
person appealing
Exception: Orders granting/denying a MFR/MNT
While some of the items in Rule 109. Sec. 1 may be
considered as interlocutory under ordinary special
actions, the nature of special proceedings declares
them as appealable as exceptions to Rule 41, Sec. 2.
B. When to appeal
In a special proceeding, the period of appeal is 30
days.
The appeal period may be interrupted by the filing
of an MFR/MNT. Once the appeal period expires
without an appeal/MF/MNT, the order becomes
final.
C. Modes of appeal
NOTICE and RECORD ON APPEAL REQUIRED.
Rule 109 contemplates multiple appeals during the
pendency of special proceedings. A record on appeal
in addition to the notice of appeal is thus
required to be filed as the original records of the
case should remain with the trial court to enable the
rest of the case to proceed in the event that a
separate and distinct issue is resolved by said court
and held to be final. However, a record on appeal is
not necessary where no other matter remained to be
heard and determined by the trial court after it
issued the appealed order granting the petition for
cancellation of birth record and change of surname
in the civil registry. [Republic v. Nishina (2010)]
D. Rule on Advance Distribution

Notwithstanding a pending controversy/appeal in
estate settlement proceedings, the court may permit
that the estates parts which are not affected by the
controversy/appeal be distributed, upon compliance
with Rule 90.

Annex A
Domestic Adoption (RA 8552)
Governing Body
When
may
adoption
be
resorted to
DSWD
Adoption need not be the last resort
(1) Any FILIPINO CITIZEN (regardless of

where residing)
(a) of legal age,
(b) at least sixteen (16) years older
than the adoptee, (may be waived
when the adopter is the biological
parent of the adoptee, or is the
spouse of the adoptee's parent)
(c) in possession of full civil capacity
and legal rights,
(d) of good moral character, has not
been convicted of any crime
involving
moral
turpitude,
emotionally and psychologically
capable of caring for children,
Who may adopt
(e) who is in a position to support and

care for his/her children in
keeping with the means of the
family.
(2) Any ALIEN possessing the same
qualifications as above stated for
Filipino nationals: Provided,
(a) that he/she has been living in the
Philippines for at least three (3)
continuous years prior to the filing
of the application for adoption and
maintains such residence until the
adoption decree is entered,
(b) that
his/her
country
has
diplomatic relations with the
Republic of the Philippines,
(c) he/she has been certified by
his/her diplomatic or consular
office
or
any
appropriate
government agency that he/she
has the legal capacity to adopt in
his/her country, and
(d) that his/her government allows
the adoptee to enter his/her
country
as
his/her
adopted
son/daughter:
(e) that
the
requirements
on
residency and certification of the
alien's qualification to adopt in
his/her country may be waived for
the following:
(i) a former Filipino citizen who
seeks to adopt a relative
within the fourth (4th) degree
of consanguinity or affinity; or
(ii) one who seeks to adopt the
legitimate son/daughter of
his/her Filipino spouse; or
Intercountry Adoption (RA 8043)

Inter-country Adoption Board (ICAB)
Adoption only as last resort: No child shall be
matched to a foreign adoptive family unless it
is satisfactorily shown that the child cannot
be adopted locally (Sec.11)
(1) FILIPINO
CITIZEN
permanently
residing abroad may file an
application
for
inter-country
adoption of a Filipino child if he/she:
(a) is at least twenty-seven (27)
years of age
(b) at least sixteen (16) years older
than the child to be adopted, at
the time of application unless
the adopter is the parent by
nature of the child to be
adopted or the spouse of such
parent:
(c) has the capacity to act and
assume
all
rights
and
responsibilities
of
parental
authority under his national
laws, and has undergone the
appropriate counseling from an
accredited counselor in his/her
country;
(d) has not been convicted of a
crime involving moral turpitude;
(e) is in a position to provide the
proper care and support and to
give the necessary moral values
and example to all his children,
including the child to be adopted
(f) if married, his/her spouse must
jointly file for the adoption;
(g) is eligible to adopt under his/her
national law;
(h) agrees to uphold the basic rights
of the child as embodied under
Philippine
laws,
the
U.N.
Convention on the Rights of the
Child, and to abide by the rules
and
regulations
issued
to
implement the provisions of this
Act;
(i) comes from a country with
whom
the
Philippines
has
diplomatic relations and whose
government maintains a similarly
authorized
and
accredited
agency and that adoption is
allowed under his/her national
laws;
261

(iii) one who is married to a
Filipino citizen and seeks to
adopt jointly with his/her
spouse a relative within the
fourth
(4th)
degree
of
consanguinity or affinity of
the Filipino spouse; or
262
(3) The GUARDIAN with respect to the

ward after the termination of the
guardianship and clearance of his/her
financial accountabilities. ( Sec. 7)
(a) Any person below eighteen (18) years of
age who has been administratively or
judicially declared available for adoption;
(b) The legitimate son/daughter of one spouse
by the other spouse;
(c) An illegitimate son/daughter by a qualified
adopter to improve his/her status to that of
legitimacy;
Who may
adopted
be
(d) A person of legal age if, prior to the

adoption, said person has been consistently
considered and treated by the adopter(s) as
his/her own child since minority;
(e) A child whose adoption
previously rescinded; or
has
(2) ALIEN with above qualifications
a) Filipino children (Sec. 3(a))

b) Below 15 years of age (Sec. 3(b))
c) Who are legally free, meaning children who
have been voluntarily or involuntarily
committed to the DSWD (Sec. 3(f) and Sec. 8)
IRR of 2004 adds that:
Any child who has been voluntarily or
involuntarily committed to the Department as
dependent, abandoned or neglected pursuant
to the provisions of the Child and Youth
Welfare Code may be the subject of InterCountry Adoption xxx (Sec. 26)
been
(f) A child whose biological or adoptive

parent(s)
has
died:
Provided, That no
proceedings shall be initiated within six (6)
months from the time of death of said
parent(s). (Sec. 8)
Petition for adoption shall be filed with
Family Court of the province or city where the
prospective adoptive parents reside (Rule on
Adoption, Sec. 6)
Venue
Trial Custody
(j) possesses all the qualifications

and none of the disqualifications
provided herein and in other
applicable Philippine laws.
Takes place in Philippines

Only upon petition of adoptee, never by
adopters (Sec.19)
Either with the Philippine RTC having

jurisdiction over the child, or with the Intercountry Board through an intermediate
agency, in the country of the adoptive
parents (Sec. 10)
IRR of 2004 provides that:
Application shall be filed with the Board or
the Central Authority or the Foreign Adoption
Agency in the country where the applicant
resides. In case of foreign nationals who file
petition for adoption under RA 8552 or
Domestic Adoption Law, the Court after
finding petition to be sufficient in form and
substance and proper case for inter-country
adoption shall immediately transmit the
petition to the board for appropriate action.
(Sec. 30)
Where adoptive parents reside
No provision limiting act of rescission only to
adoptee.
In IRR, the procedure is provided for when
adoption process is terminated:
Rescission
SECTION 47. DISRUPTION AND TERMINATION

OF PLACEMENT. - In the event of serious
damage in the relationship between the child
and the applicant/s where the continued
placement of the child is not in his/her best
interests, the Central Authority and/or the

FAA shall take the necessary measures to
protect the child, in particular, to cause the
child to be withdrawn from the applicant/s
and to arrange for his/her temporary care.
The Central Authority and/or FAA shall
exhaust all means to remove the cause of the
unsatisfactory relationship which impedes or
prevents the creation of a mutually
satisfactory adoptive relationship. A complete
report should be immediately forwarded to
the Board with actions taken as well as
recommendations and appropriate plans.
Based on the report, the Board may terminate
the pre-adoptive relationship.
SEC. 48. NEW PLACEMENT FOR CHILD. In the
event of termination of the pre-adoptive
relationship, the Board shall identify from the
Roster of Approved Applicants a suitable
family with whom to place the child. The
Central Authority and/or the FAA may also
propose a replacement family whose
application shall be filed for the approval of
the Board. No adoption shall take place until
after the Board has approved the application
of such replacement family.
263

Annex B
264
Rights
involved
Situations
applicable
Party
authorized to
file
Respondents
Before which
court or
judicial
authority
filed
Contents of
the petition
COMPARATIVE TABLE ON HABEAS CORPUS and RULE ON CUSTODY OF MINORS

HABEAS CORPUS (RULE 102)
RULE ON CUSTODY AND HABEAS CORPUS FOR
MINORS (A.M. 03-04-04)
Right to liberty
Petition for the rightful custody of a minor
Rightful custody of the aggrieved party
Actual violation of the aggrieved partys right
Deprivation of rightful custody
Party for whose relief it is intended or by some
person in his behalf
May or may not be an officer
(1) RTC or any judge thereof
(2) CA or any member thereof in instances
authorized by law
(3) SC or any member thereof
(4) Special jurisdiction given to first level
courts in the absence of RTC judges in a
province or city (SECTION 35, BP 129)
(5) In aid of appellate jurisdiction of the
Sandiganbayan ( RA 8249 further
expanding its jurisdiction)
Signed, verified either by the party for whose

relief it is intended, or by some person in his
behalf and shall set forth: (PDIC)
(1) That the person in whose behalf the
application is made is imprisoned or
restrained on his liberty;
(2) The officer or name of the person by
whom he is so imprisoned or restrained
or, if both are unknown or uncertain, such
officer or person may be described by an
assumed appellation, and the person who
is served with the writ shall be deemed
the person intended;
(3) The place where he is so imprisoned or
restrained, if known;
(4) A copy of the commitment or cause of
detention of such person, if it can be
procured without impairing the efficiency
of the remedy or, if the imprisonment or
restraint is without any legal authority,
such fact shall appear.
A verified petition for a writ of habeas corpus

involving custody of minors shall be filed with
the Family Court. The writ shall be
enforceable within its judicial region to which
the Family Court belongs.
However, the petition may be filed with the
regular court in the absence of the presiding
judge of the Family Court, provided,
however, that the regular court shall refer the
case to the Family Court as soon as its
presiding judge returns to duty.
The petition may also be filed with the
appropriate regular courts in places where
there are no Family Courts.
The verified petition shall allege the following:
(PRMO)
(1) The personal circumstances of the
petitioner and of the respondent
(2) The name, age and present whereabouts
of the minor and his or her relationship
to the petitioner and the respondent
(3) The material operative facts constituting
deprivation of custody and
(4) Such other matters which are relevant to
the custody of the minor.
The verified petition shall be accompanied by
a certificate against forum shopping, which the
petitioner must sign personally.

Annex C
Writ Matrix (Comparison of the Writs)
WHC Writ of Habeas Corpus
WD Writ of Habeas Data
RWD Rules on Habeas Data
CA - Court of Appeals
RTC Regional Trial Court
Nature, scope,
function
Limitations
Who may file
Where filed
Where
enforceable
WA Writ of Amparo
RWA - Rules on the Writ of Amparo
SC Supreme Court
SB Sandiganbayan
CoC Clerk of Court
Habeas Corpus
All
cases
of
illegal
confinement and detention
which any person is deprived
of his liberty or rightful
custody of any person is
withheld from the person
entitled (102.1)
Amparo
Involves right to life, liberty
and security violated or
threatened with violation by
an unlawful act or omission of
a public official or employee
or a private individual or
entity
Actual violation before writ

issues. Note Villavicencio v.
Lukban on applicability of the
writ in case of constructive
restraint
May be suspended in cases of
invasion or rebellion when
public safety requires it
(Consti. Art. III Sec. 15)
By a petition signed and
verified by the party for
whose relief it is intended, or
by some person on his behalf
(102.3)
It covers extralegal killings

and enforced disappearances
or threats thereof.
Granted by:
(1) SC or any member
thereof, on any day and
at any time
(2) CA or any member
thereof in instances
authorized by law
(3) RTC or a judge thereof,
on any day and at any
time, enforceable only
within
his
judicial
district (102.2)
(4) MTC OR FIRST LEVEL
COURTS in the absence
of RTC judges in a
judicial region (section
35 BP 129)
If SC or CA issued, anywhere
in the Philippines
Habeas Data
Involves the right to privacy
in life, liberty or security
violated or threatened by an
unlawful act or omission of a
public official or employee,
or of a private individual or
entity
engaged
in
the
gathering,
collecting
or
storing of data or information
regarding the person, family,
home and correspondence of
the aggrieved party.
Shall not diminish, increase or

modify substantive rights
(RWA Sec. 23)
Shall not diminish, increase or

modify substantive rights
(RWD Sec. 23)
Petition
filed
by
the
aggrieved party or by any
qualified person or entity in
the following order:
(1) Any member of the
immediate family
(2) Any
ascendant,
descendant or collateral
relative
of
the
aggrieved within the 4th
civil
degree
of
consanguinity or affinity
(3) Any concerned citizen,
organization,
association
or
institution
Filing by the aggrieved
suspends the right of all
others (RWA Sec. 2 )
Any aggrieved party may file

a petition for the WHD
Filed on any day and at any

time:
(1) SB, CA, SC, or any justice
of such courts
(2) RTC of place where the
threat, act, or omission
was committed or any
element occurred (RWA
Sec. 4)
Petition may be filed with

RTC where the petitioner or
respondent resides or that
which has jurisdiction over
the place where the data or
information
is
gathered,
collected or stored, at the
option of petitioner
However,
in
cases
of
extralegal
killings
and
enforced disappearances, the
petition may be filed by (also
successive):
(1) Any member of the
immediate family of the
aggrieved
(2) Any
ascendant,
descendant or collateral
relative
of
the
aggrieved party within
the fourth civil degree
of
consanguinity
or
affinity, (RWD Sec. 2)
If public data files of

government offices, petition
shall be filed with the SC, CA,
or SB (RWD Sec. 3)
Writ shall be enforceable

anywhere in the Philippines
Writ shall be enforceable

anywhere in the Philippines
265

Habeas Corpus
266
Where
returnable
If granted by the RTC or

judge
thereof,
it
is
enforceable in any part of the
judicial region (Section 21, BP
129 which modified the term
judicial district in Section 2,
Rule 102 into judicial region)
where the judge sits
If the one that granted the
writ:
(1) Is the SC or CA, or a
member
thereof,
returnable before such
court or any member
thereof or an RTC
(2) An RTC, or a judge
thereof,
returnable
before himself (102.2)
Docket Fees
upon the final disposition of

such proceedings the court or
judge shall make such order
as to costs as the case
requires (102.19)
Essential
allegations/
Contents
of
petition
Signed and verified either by

the party for whose relief it is
intended or by some person
on his behalf, setting forth:
(1) The person in whose
behalf
whose
the
application is made is
imprisoned or restrained
of his liberty
(2) Name of the person
detaining another or
assumed appellation
(3) Place
where
he
is
imprisoned or restrained
of his liberty
(4) Cause
of
detention
(102.3)
When proper
Court or judge must, when a

petition is presented and it
appears that it ought to issue,
grant the same and then:
Amparo
(RWA Sec. 4)
Habeas Data
(RWD Sec. 3)
If the one that granted the

writ:
(1) Is the SC or any of its
justices, before such
court or any justice
thereof, or before the
SB or CA or any of their
justices, or to any RTC
of the place where the
threat, act or omission
was committed or any
of its elements occurred
(2) The SB or CA or any of
their justices, before
such court or any
justice thereof, or to
any RTC of the place
where the threat, act,
or
omission
was
committed or any of its
elements occurred (RWA
Sec. 3)
Petitioner shall be exempted
from the payment of the
docket and other lawful fees
- Court, justice or judge
shall docket the petition
and
act
upon
it
immediately (RWA Sec 4)
Signed and verified and shall
allege:
(1) The
personal
circumstances of the
petitioner
(2) Name or appellation and
circumstances of the
respondent
(3) The right to life, liberty,
and security violated or
threatened
with
violation,
(4) The
investigation
conducted, if any, plus
circumstances of each
(5) The
actions
and
recourses taken by the
petitioner
(6) Relief prayed for
If issued by:
(1) The SC or any of its
Court or any justice
thereof, or CA or SB or
any of its justices, or
the RTC of the place
where the petitioner or
respondent resides /
has jurisdiction over the
place where the data or
information is gathered,
stored or collected
(2) The CA or SB or any of its
court or any justice
thereof, or the RTC
(same with scenario: SC
issued
and
then
returned in RTC)
(3) RTC, returnable before
such court or judge
(RWD Sec. 4)
None for indigent petitioner
Petition shall be docketed
and acted upon immediately,
w/o prejudice to subsequent
submission
of
proof
of
indigency not later than 15
days from filing (RWD Sec. 5)
Verified and written petition
shall contain:
(1) Personal circumstances
of
petitioner
and
respondent
(2) Manner the right to
privacy is violated or
threatened
and
its
effects
(3) Actions and recourses
taken by the petitioner
to secure the data or
information
(4) The location of the files,
registers, or databases,
the government office,
and the person in
charge or control
(5) The reliefs prayed for
May include a general prayer

for other just and equitable
reliefs (RWA Sec. 5)
Upon the filing of the
petition, the court, justice,
or judge shall immediately
order the issuance of the writ
Such other relevant reliefs as

are just and equitable (RWD
Sec. 6)
Upon filing of the petition,
the court, justice, or judge
shall immediately order the
issuance of the writ if on its

Habeas Corpus
the clerk of court (CoC)
shall issue the writ under
the seal of the court or
in case of emergency, the
judge may issue the writ
under his own hand, and
may depute any officer or
person to serve it (102.5)
How and who

serves
Respondent
How executed
and returned
Also proper to be issued when

the court or judge has
examined into the cause of
restraint of the prisoner, and
is satisfied that he is
unlawfully imprisoned (102.5)
Writ may be served in any
province by the (a) sheriff,
(b) other proper officer, or
(c) or person deputed by the
court or judge
Service is made by leaving the
original with the person to
whom it is directed and
preserving a copy on which to
make return of service
If that person cannot be
found, or has not the
prisoner in his custody,
service shall be made on
any other person having or
exercising such custody
(102.7)
May or may not be an officer
The officer to whom the writ

is directed shall convey the
person so imprisoned or
restrained before:
- the judge allowing the writ,
- or, in his absence or
disability, before some
other judge of the same
court
Amparo
if on its face it ought to issue
CoC shall issue the writ
under the seal of the court
or
In case of urgent necessity,
the justice or the judge
may issue the writ under
his or her own hand, and
may deputize any officer
or person to serve it
Habeas Data
face it ought to issue.
CIC shall issue the writ
under the seal of the court
and cause it to be served
within 3 days from issuance
or
In case of urgent necessity,
the justice or judge may
issue the writ under his or
her own hand, and may
deputize any officer or
person to serve it (RWD
Sec. 7)
The writ shall be served upon

the respondent by a judicial
officer or by a person
deputized by the court,
justice or judge who shall
retain a copy on which to
make a return of service
In case the writ cannot
be served personally on
the respondent, the rules
on substituted service
shall apply (RWA Sec. 8)
The writ shall be served upon

the respondent by a judicial
officer or by a person
deputized by the court,
justice or judge who shall
retain a copy on which to
make a return of service
In case the writ cannot be
served personally on the
respondent, the rules on
substituted service shall apply
(RWD Sec. 9)
Respondent is a public official

or employee or private
individual or entity
A public official or employee

or a private individual or
entity engaged in gathering,
collecting or storing data
Respondent files the return
Respondent files the return
on the day specified in the

writ,
unless person directed to
be produced is sick or
infirm, and cannot, without
danger, be brought therein
When to
return
Contents
return
file
of
officer shall then make due

return of the writ, with the
day and cause of the caption
and restraint according to the
command thereof (102.8)
On the day specified on the
writ
When the person to be
produced is imprisoned or
restrained by an officer the
person who makes the return
shall state, and in other cases
Within 5 working days after

service of the writ
Within 5 working days after
service of the writ, the
respondent
shall
file
a
verified
written
return
together
with
supporting
Same with WA
(1) Lawful defenses such as
national security, state
secrets,
privileged
communications,
confidentiality of the
267

Habeas Corpus
the person in whose custody
the prisoner is found shall
state in writing to the court
or judge before whom the
writ is returnable:
(1) Truth of custody/power
over the aggrieved
(2) If has custody or power,
or under restraint, the
authority and the cause
thereof, with a copy of
the
writ,
order,
execution
or
other
process, if any upon
which the party is held
(3) If the party is in his
custody or power, and is
not
produced,
particularly the nature
and gravity of the
sickness or infirmity
(4) If he has had the party in
his custody or power,
and has transferred such
custody or restraint to
another, particularly to
whom, at what time, for
what cause, and by
what authority such
transfer
was
made.
(102.10)
268
Formalities
return
of
Penalties
For refusing to
issue or serve
For
return
faulty
Return or statement shall be

signed and sworn to by the
person who makes it if the
prisoner is not produced,
Unless the return is made
and signed by a sworn
public officer in his official
capacity (102.11)
CoC who refuses to issue
the writ after allowance
and demand,
Or a person to whom a writ
is directed, who:
(1)neglects/refuses to obey
or make return of the
same according to the
command thereof,
(2)or makes false return,
(3)or upon demand made by
or on behalf of the
prisoner, refuses to
deliver to the person
demanding, within 6
hours a true copy of the
warrant or order of
commitment,
shall forfeit to the party
aggrieved the sum of P1000,
recoverable in a proper
action, and may also be
Amparo
affidavits which shall, ,
contain:
(1) Lawful defenses
(2) The steps or actions
taken to determine the
fate or whereabouts of
the aggrieved party
(3) All relevant information
in the possession of the
respondent pertaining
to the threat, act or
omission against the
aggrieved party
(4) If the respondent is a
public
official
or
employee, the return
shall further state acts:
(a) To verify identity of
aggrieved party
(b) To
recover
and
preserve evidence
(c) To
identify
and
collect
witness
statements
(d) To determine cause,
manner, location,
and time of death
or disappearance
(e) To
identify
and
apprehend persons
involved
(f) Bring
suspected
offenders before a
competent
court
(RWA Sec.9)
the respondent shall file a
verified
written
return
together
with
supporting
affidavits (RWA Sec. 9)
Habeas Data
source of information of
media etc.
(2) In case of respondent in
charge, in possession or
in control of the data or
information subject of
the petition:
(a) A disclosure of the
data or information
about
the
petitioner,
the
nature of such data
or information, and
the purpose for its
collection
(b) The steps or actions
taken
by
the
respondent
to
ensure the security
and confidentiality
of the data or
information
(c) The currency and
accuracy of the
data or information
held
CoC who refuses to issue

the
writ
after
its
allowance, or
a deputized person who
refuses to serve the same,
COC who refuses to issue

the writ after its allowance,
or
a deputized person who
refuses to serve the same,
shall be punished by the

court, justice or judge for
contempt without prejudice
to other disciplinary actions
(RWA Sec. 7)
shall be punished by the

court, justice, or judge for
contempt without prejudice
to other disciplinary actions
(RWD Sec. 8)
The court, justice, or judge

may order the respondent
who refuses to make a
return, or who makes a
false return, or any person
who otherwise disobeys or
resist a lawful process or
order of the court to be
punished for contempt
Contemnor
may
be
imprisoned or imposed a
The court, justice, or judge

may
punish
with
imprisonment or fine a
respondent
who
commits
contempt by:
(1) Making a false return or
(2) Refusing to make a
return or
(3) Any
person
who
otherwise disobeys or
resists a lawful process
Other allegations relevant to

the
resolution
of
the
proceeding (RWD Sec.10)
Respondent shall file a

verified
written
return
together with supporting
(RWD Sec. 10)

Habeas Corpus
punished
for
(102.16)
Is period of
return
extendable?
Is a general
denial
allowed?
Defenses not
pleaded
contempt
Amparo
fine (RWA Sec. 16)
No, not even on
meritorious grounds.
Yes. No prohibition in Rule.
highly
No, by virtue if A.M. No. 07-912-SC

If not raised in return deemed
waived (RWA Sec 10)
Effect
of
failure to file
return
Court or justice shall proceed

to hear the petition ex parte
(RWA Sec. 12)
Nature
Hearing
Summary.
However, the
court, justice, or judge may
call
for
a
preliminary
conference to simplify the
issues and look at possibility
of obtaining stipulations and
admissions from the parties.
Hearing shall be from day
to day until completed
same priority as petitions
for WHC
of
Date and time

of hearing
As specified in the writ
Not later than 7 days from

the issuance of the writ
Prohibited
pleadings
In custody of minors: a
motion to dismiss, except on
the ground of lack of
jurisdiction
Motion to dismiss, Motion for

extension of time to file
opposition, affidavit, position
paper and other pleadings,
Dilatory
motion
for
postponement, Motion for bill
of particulars, Counterclaims
or cross-claims, Third-party
complaint, Reply, Motion to
declare
respondent
in
default,
Intervention,
Memorandum, Motion for
reconsideration
of
interlocutory
orders
or
interim relief orders, petition
for certiorari, mandamus, or
prohibition (RWA Sec.11)
Establish claims by substantial
evidence
if respondent is a private
individual or
entity,
ordinary diligence
if
public
official
or
employee,
extraordinary
diligence
Public official or employee
cannot
invoke
the
presumption that official duty
has been regularly performed
(RWA Sec. 17)
Burden
Proof
of
Presumption of
Official duty
Habeas Data
or order of the court
(RWD Sec. 11)
Yes, by the court, for
justifiable reasons (RWD Sec.
10)
No, by virtue of RWD Sec. 10,
last sentence.
Preponderance of evidence
Yes. Consonant wit 102.13,

stating that if warrant of
commitment is in pursuance
with law, serves as prima
facie cause of restraint
Court, judge, or justice shall

hear the motion ex parte,
granting the petitioner such
reliefs as the petition may
warrant
Unless the court in its
discretion
requires
the
petitioner to submit evidence
(RWD Sec. 14)
Summary. With possibility of
preliminary
conference
similar to the writ of amparo
(RWD Sec. 14)
Hearing on chambers may be
conducted where respondent
invokes the defense of
national security or state
secrets, or the data is of
public or privileged character
(RWD Sec. 12)
Not later than 10 working
days from the date of
issuance writ
Same as writ of amparo (RWD
Sec. 13)
Substantial evidence required

to prove the allegations in the
petition (RWD Sec. 16)
269

Habeas Corpus
270
Judgment
Appeals
Consolidation
of actions
Effect of filing
criminal action
Within 48 hours from notice

of the judgment of final order
appealed
Amparo
The
court
shall
render
judgment within 10 days from
the time the petition is
submitted
for
decision (RWA Sec. 18)
5 working days from the date
of notice of adverse judgment
Rule 45 filed with the SC
May be consolidated with a
criminal
action
filed
subsequent to the petition
(RWA Sec. 23)
No more separate petition
shall be filed.
Reliefs
available by motion in the
criminal case (RWA Sec. 22)
Habeas Data
Within 10 days from the time
the petition is submitted for
decision (RWD Sec. 16)
5 working days from the date
of notice of adverse judgment
Rule 45 filed with the SC
May be consolidated with a
criminal
action
filed
subsequent to the petition
(RWD Sec. 21)
Same as WA

Annex D
Applicability
Nature
Who May File
Where Filed
Rule 103
Substantial Changes
Judicial
1. The person desiring to
change his name
2. Some other person on
his behalf
RTC of the province in
which the person desiring
to
change
his
name
resides.
Rule 108
Substantial
changes
in
entries in the civil registry
(other than name)
Judicial
Natural person having direct
and personal interest in the
correction of error in an
entry in the civil register
RTC of the province where
the civil registry is located
Change
of
Nicknames
RA 9048
First
Names
or
Change brought about by clerical or

typographical errors
Administrative
A natural person having direct and
personal interest in the change of
first name or nickname in the civil
register.
The local civil registry office of the
city or municipality where the
record being sought to be
corrected/changed is kept.
EXCEPTIONS:
If the petitioner has already
migrated to another place in
the country, the petition shall
be filed with local civil
registrar of the place where
the
interested
party
is
presently residing or domiciled
If the petitioner is a Filipino
citizen presently residing or
domiciled in a foreign country,
the petition shall be filed in
the
nearest
Philippine
Consulate.
Rationale: It would not be practical
for him, in terms of transportation
expenses, time and effort, to
appear in person before the local
civil
registrar
keeping
the
documents to be corrected or
changed
Standing
of
the LCR
Notice
requirement
Not a party to the

proceeding
No mention of notice to be
sent
Contents
Petition
Title: In Re: Petition for

Change of Name of X, also
known as Y and Z, to ABC.
X, Petitioner.
of
Names or Aliases of the

Applicant (must appear in
the
caption
of
the
petition)
Omission is fatal to the
petition
To allow a reader of
the published petition
to notice the said
aliases
Petitioner has been a
bona fide resident of the
province
where
the
petition is filed for at
least 3 years prior to the
Made a party to the

proceeding as a respondent
The
court
shall
cause
reasonable notice to be
given to persons named in
the petition
1. Facts necessary to establish
the merits of the petition.
2. A showing that the petitioner is
competent to testify to the
matters stated.
3. Particular erroneous entry or
entries which are sought to be
corrected and/or the change
sought to be made.
271

Rule 103
date of such filing.
272
Rule 108
RA 9048
Cause for which the

change of the petitioner's
name is sought
Petitioner must show a
proper or compelling
reason for the change
of name + the fact
that
he
will
be
prejudiced by the use
of his official name.
Form
Petition
of
Procedure for
Changing of
Name
Name asked for

The petition shall
signed and verified.
be
1. Filing of petition for

change of name.
2. Court shall promulgate
an order fixing a date
and place for hearing
the petition. The date
set for the hearing shall
not be:
Within 30 days prior
to an election AND
Within 4 months
after
the
last
publication of the
notice.
3. Court shall direct a copy
of the order to be
published before the
hearing
At least once a
week
for
3
successive weeks
In some newspaper
of
general
circulation
published in the
province.
4. Hearing
shall
be
conducted.
The SolGen or the
proper provincial or
city
fiscal
shall
appear on behalf of
the Government of
the Republic.
5. Judgment granting or
denying the change of
name.
6. Copy of judgments shall
be furnished the civil
registrar
of
the
municipality
or
city
where the court issuing
Verified petition
1. Filing of petition
2. Court shall promulgate an
order fixing the time
and place for hearing
the petition and cause
reasonable notice to be
given to the persons
named in the petition.
Civil registrar and all
persons who have or
claim any interest
which
would
be
affected
thereby
shall be made parties
to the proceeding
3. Court shall direct a copy
of the order to be
published before the
hearing
At least once a week
for
3
successive
weeks
In some newspaper
of
general
circulation published
in the province.
1.
2.
3.
In the form of an affidavit

Verified
Subscribed and sworn to before
any person authorized by law
to administer oaths.
1.Filing of petition and its
supporting papers in 3 copies to
be distributed to:
The concerned city or
municipal civil registrar or
the consul general
The Office of the Civil
Registrar General
The petitioner
2.The City or Municipal Registrar or
the Consul General shall post the
petition in a conspicuous place
for ten 10 consecutive days after
he finds the petition and its
supporting documents sufficient
in form and substance.
3.The petition shall be published at
least once a week for 2
consecutive
weeks
in
a
newspaper of general circulation.
5. Hearing
shall
be
conducted.
Court may expedite
the proceedings and
also grant preliminary
injunction
for
preservation of rights
of the parties
4.The City or Municipal Registrar or

the Consul General shall render a
decision not later than 5
working
days
after
the
completion of the posting and/
or publication requirement. He
shall transmit a copy of his
decision together with the
records of the proceedings to the
Office of the Civil Registrar
General within 5 working days
from the date of the decision.
Where the petition is denied
by the city or municipal civil
registrar or the consul
general, the petitioner may
either appeal the decision to
the civil registrar general or
file the appropriate petition
with the proper court.
6. Judgment granting or
denying the change of
name.
5.The Civil Registrar General shall,

within 10 working days from
receipt of the decision granting a
4. File opposition
Within 15 days from
notice of the petition
or from the last date
of publication

Rule 103
the same is situated,
who
shall
forthwith
enter the same in the
civil register.
Rule 108
7. Copy of judgments shall
be furnished the civil
registrar concerned who
shall annotate the same
in the records
RA 9048
petition, exercise the power to
impugn such decision by way of
an objection.
Grounds for objection
(a) The error is not clerical
or typographical
(b) The correction of an
entry or entries in the
civil
register
is
substantial
or
controversial
as
it
affects the civil status
of a person
(c) The basis used in
changing the first name
or nickname of a person
does not fall under one
of the valid grounds.
If the civil registrar general fails to
exercise his power to impugn the
decision of the city or municipal
registrar or of the consul general
within the period, such decision
shall become final and executory.
6.The civil registrar general shall
immediately notify the city or
municipal civil registrar or the
consul general of the action
taken on the decision.
7.Upon receipt of the notice
thereof, the city or municipal
civil registrar or the consul
general shall notify the petitioner
of such action.
Opposition
Grounds
Change
Name
Any interested person
for
of
Republic v. Hernandez:
Valid Grounds for Change
of Name
(1) The
name
is
ridiculous,
tainted
with
dishonor
or
extremely difficult to
write or pronounce.
(2) Change results as a
legal consequence of
legitimation
(3) The change will avoid
confusion.
(4) A sincere desire to
adopt a Filipino name
to erase signs of
Civil registrar and any

person having or claiming
interest under the entry
whose
cancellation
or
correction is sought
Entries
subject
to
cancellation or correction:
(1) Birth
(2) Marriage
(3) Death
(4) Legal separation
(5) Judgment of annulment
(6) Judgment
declaring
marriage null and void
(7) Legitimation
(8) Adoption
(9) Acknowledgment
of
natural children
(10) Naturalization
(11) Election,
loss
or
recovery of citizenship
8.Appeal. The petitioner may seek

reconsideration with the civil
registrar general or file the
appropriate petition with the
proper court.
N/A
NOTE: The Civil Registrar General is
given the power to object to the
decision of the Local Civil Registrar.
Sec. 4: Grounds for Change of
First Name or Nickname
(1) The first name or nickname is
ridiculous,
tainted
with
dishonor or extremely difficult
to write or pronounce.
(2) The new first name or
nickname has been habitually
and continuously used by the
petitioner and he has been
publicly known by the first
name or nickname in the
community.
273
274
Rule 103
former alienage (Ang
Chay vs. Republic,
1970)
(5) Having
continuously
used and been known
since childhood by a
Filipino name, having
been unaware of alien
parentage (Uy vs.
Republic, 1965)
Rule 108
(12) Civil interdiction
(13) Judicial determination
of filiation
(14) Voluntary
emancipation of minor
(15) Changes of name
RA 9048
(3) The
change
will
confusion.
avoid

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REMEDIAL LAW REVIEWER

UP LAW BAR OPERATIONS COMMISSION

REMEDIAL LAW REVIEWER

Settlement of estate of deceased

strictly applicable to orders in special

May involve only 1 party

Action - formal demand of ones right in a court of

REMEDIAL LAW REVIEWER

Person dies intestate leaving no heir Residence of the

For the custody of minors, where petitioner resides or

Judicial - Where corresponding civil registry is located

REMEDIAL LAW REVIEWER

Which court has jurisdiction

A. Which court has jurisdiction

Jurisdiction: court first taking cognizance shall

B. Venue in judicial settlement of

property, not by virtue of any right of inheritance

Probate court is of limited jurisdiction

D. Powers and Duties of Probate

II. SUMMARY SETTLEMENT OF

REMEDIAL LAW REVIEWER

Division of estate in public instrument or affidavit of

Filing of the public instrument or affidavit of

Publication of notice of the fact of extrajudicial

Filing of bond equivalent to the value of personal

The parties may divide the estate

Sec. 1, Rule 74 does not preclude the heirs from

Claim by creditors and deprived heirs must be filed

REMEDIAL LAW REVIEWER

Upon fulfillment of the requisites, the court may

Application for summary settlement with an

Publication of notice of the fact of extrajudicial

Hearing to be held not less than 1 month nor more

Court to proceed summarily, without appointing an

Grant allowance of the will, if any

Determine persons entitled to estate

Pay debts of estate which are due

Filing of bond fixed by the court

If it shall appear within 2 years after the summary

He shall have a right to compel the

settle the amount of such debts or lawful

order how much and in what manner each

may issue execution, if circumstances

Period for Claim of Minor or Incapacitated Person

REMEDIAL LAW REVIEWER

Action to Annul a Deed of Extrajudicial

General Rule: A probate proceeding only looks at

Decree of probate is conclusive as to its due

HOWEVER in Amerol v. Bagumbaran (1987), the

Rodelas v Aranza (1982):

Since implied or constructive trusts are obligations

Exception: A photostatic copy or Xerox of the

III. PRODUCTION AND PROBATE

Suit for forgery of a will, which has been duly

B. Who may petition for

REMEDIAL LAW REVIEWER

Jurisdiction, how acquired

(1) Jurisdictional facts

B. Grounds for disallowing a will

C. Reprobate; Requisites before

A. When and To whom

REMEDIAL LAW REVIEWER

Who may oppose: Any person interested in will

(1) Incompetency of the person for whom letters