Cle grADE 8

REMEDIAL LAW SPECIAL PROCEEDINGS
RULE 72 Bar Questions, Cases, Updated Laws and Rules, 2011

SUBJECT MATTER AND ed., p. 1).
APPLICABILITY OF GENERAL RULES SECTION 2. APPLICABILITY OF RULES OF CIVIL
ACTIONS
Special Proceeding
A remedy by which a party seeks to establish a status, a In the absence of special provisions, the rules provided for
right or a particular fact (Rule 1, Section 3c). in ordinary actions shall be, as far as practicable,
applicable in special proceedings.
SECTION 1. SUBJECT MATTER OF SPECIAL
PROCEEDINGS The word “practicable” is defined as: possible to practice
or perform; capable of being put into practice, done or
Special proceedings enumerated in the Rules of Court accomplished. This means that in the absence of special
(J-CRASHED-CHAG) provisions, rules in ordinary actions may be applied in
1. J udicial approval of voluntary recognition of minor special proceedings as much as possible and where doing
natural children; so would not pose an obstacle to said proceedings.
2. C hange of name; Nowhere in the Rules of Court does it categorically say
3. R escission and revocation of adoption; that rules in ordinary actions are inapplicable or merely
4. A doption; suppletory to special proceedings. Provisions of the Rules
5. S ettlement of estate of deceased persons; of Court requiring certificate of non-forum shopping for
6. H abeas corpus; complaints and initiatory pleadings, a written explanation
7. E scheat; for non-personal service and filing, and the payment of
8. D eclaration of absence and death; filing fees for money claims against an estate would not in
9. C ancellation and correction of entries in the civil any way obstruct probate proceedings (Sheker v. Estate
registry; of Alice Sheker, Medina, G.R. No. 157912, December 13,
10. ospitalization
H of insane persons; 2007).
11. A doption;
12. G uardianship and custody of children; Notwithstanding Sec. 2, Rule 72, intervention as set forth
under Rule 19 does not extend to creditors of a decedent
Other Special Proceedings (LCR-VA) whose credit is based on a contingent claim. Sec. 1, Rule
1. L iquidation proceedings; 19 requires that an intervenor “has a legal interest in the
2. C orporate rehabilitation; matter in litigation, or in the success of either of the
3. R ecognition and enforcement of arbitration clause or parties, or an interest against both, or is so situated as to
award; be adversely affected by a distribution or other disposition
4. V acation, setting aside, correction or modification of an of property in the custody of the court x x x.” While the
arbitral award; language of Sec. 1, Rule 19 does not literally preclude
5. A ny application with a court for arbitration assistance petitioners from intervening in the intestate proceedings,
and supervision. case law has consistently held that the legal interest
required of an intervenor “must be actual and material,
Note: The list under Sec. 1, Rule 72 is not exclusive. Any direct and immediate, and not simply contingent or
petition which has for its main purpose the establishment expectant” (Hilado, et al. v. Court of Appeals, G.R. No.
of a status, right or a particular fact may be included as a 164108, May 8, 2009).
special proceeding (Festin, Special Proceedings, A
Foresight to the Bar Exam: Question and Answer Notes,
EXECUTIVE COMMITTEE SUBJECT COMMITTEE MEMBERS

IAN MICHEL GEONANGA overall chairperson, CAMILLE SOLA subject chair, REA NIÑA Rachelle Ann Baod, Cecille
JOSE ANGELO DAVID chairperson for OCFEMIA assistant subject chair, ARIEL Catherine Bautista, Sheigla
academics, RUTH ABIGAIL ACERO MAGHIRANG edp, VIANNE MARIE Nerie David, Charisma
chairperson for hotel operations, ALBERTO GARCIA and FLOYD ERICSON REY civil Michelle de Jesus, Norietess
RECALDE, JR. vice-chairperson for operations, procedure, SHEENA MARIE PABUSTAN de los Reyes, Nina Claire
MARIA CARMELA HAUTEA vice-chairperson special civil actions, CHARMAINE Escoto, Ryan Mervin Ferrer,
for secretariat, MARK EMMANUEL ABILO vice- DATOC special proceedings, FIDEL Angel Garma, Robert Jay
chairperson for finance, RYAN LIGGAYU vice- ESTEBAN criminal procedure, Lim, Divina Rosa Natanauan,
chairperson for electronic data processing, EMMALLAINE LEONILLE LORETO and Haroun Al-Rashid
JOMARC PHILIP DIMAPILIS vice-chairperson PRINCESS MAY BUTRON evidence, Pandapatan, Roger Arpee
for logistics EDRIAN APAYA special laws Pineda, Pia Mitzi Receno
SPECIAL PROCEEDINGS REMEDIAL LAW
Special wrong.
Ordinary Action
Proceeding Governed by
Generally no Ordinary rules special rules
Governed by the
definite adverse apply primarily and ordinary
Generally rules for ordinary
party because it is but subject to rules apply as
adversarial in civil actions.
directed against specific rules. far as
nature. There are
Nature the whole world, practicable.
definite parties – as majority of Involves two or Involves two or May involve only
plaintiff vs.
special more parties. more parties. one party.
defendant.
proceedings are in Some are
rem. initiated by
To protect or To establish a Initiated by complaint while Initiated by
Purpose enforce a right or right, status or complaint. some are petition.
prevent or fact. initiated by
redress a wrong. petition.
It is governed by It is governed by Some special Not based on a
Governing ordinary rules special rules Based on a civil actions have cause of action
Rules supplemented by supplemented by cause of action. no cause of (except Habeas
special rules. ordinary rules. action. Corpus).
It is heard by It is heard by
Court with
courts of general courts of limited Summary of venues and jurisdiction for different
Jurisdiction jurisdiction. jurisdiction. Special Proceedings
Initiated by means Venue Jurisdiction
Initiated by a
of a petition and Estate settlement (Rules 73-90)
pleading and
parties respond by Province of decedent’s MTC –If estate’s gross
parties respond
means of an residence at the time of value does not exceed
through an
How initiated opposition after death PhP300K (PhP400K in
answer after
notice and Metro Manila)
being served with
publication are If non-resident decedent – RTC – If estate’s gross
summons.
made. Province where he had value exceed MTC’s
Parties are estate jurisdiction
generally allowed Escheat (Rule 91)
Applicability to file an answer, Law on pleadings If decedent dies intestate
of pleadings counterclaim, generally not and without heirs – Province
cross-claim and applicable. where decedent last resided
third-party or where estate is
complaint. If reversion – Province where
The period to land lies wholly/partially
The period to appeal is 30 days Guardianship (Rule 92)
Appeal appeal is only 15 and aside from a Where ward resides or Family Court – If minor
days and notice notice of appeal, a where his property is located ward
of appeal suffices. record on appeal (if non-resident) RTC – If other than minor
is required. ward
Trusteeship (Rule 98)
Ordinary Civil Special Civil Special Where the will was allowed RTC
Action Action Proceeding or where the property
One by which a affected by the trust is
party sues Remedy by located
another for the Civil action which a party Adoption (AM No. 02-6-02, RA 8043)
enforcement or seeks to If domestic – where adopter Family Court
subject to
protection of a specific rules. establish a resides
right or the status, a right or If inter-country – where Family Court or Inter-
prevention or a particular fact. adoptee resides (if filed with Country Adoption Board
redress of a
180 SAN BEDA COLLEGE OF LAW

2013 CENTRALIZED BAR OPERATIONS
Family Court) Declaration of absence and appointment of their

If rescission of adoption – Family Court representative (Rule 107)
where adoptee resides Where absentee last resided RTC
Habeas Corpus (Rule 102) Cancellation/Correction of entries in the civil registry
Where detainee is detained SC (on any day and at (Rule 108)
(if filed in RTC) any time, enforceable If judicial – where the RTC
anywhere in the concerned civil registry is
Philippines) located
Sandiganbayan (only in If administrative - Local civil registry or
aid of its appellate a) Local civil registry where Philippine Consulate
jurisdiction) the record sought to be
CA (in instances changed is kept b) Local civil
authorized by law, registry of the place of
enforceable anywhere in residence of interested party
the Philippines) (only if petitioner migrated to
RTC (on any day and at another place in the
any time, enforceable only Philippines and it would be
within its judicial district) impractical to file in the place
Family Court (on custody where records sought to be
of minors, enforceable changed are kept) c)
within its territorial Philippine consulates (only
jurisdiction, [Sec. 20, AM for Philippine citizens who
No. 03-04-04-SC]) reside in foreign countries)
Writ of Amparo (AM No. 07-9-12-SC)
Where the threat or SC, CA, Sandiganbayan, Special Proceedings under various laws and SC
act/commission or any of its RTC Circulars
elements occurred a. Petitions under the Family Courts Act (R.A. No. 8369)
Writ of Habeas Data (AM No. 8-1-16-SC) 1. Rule on Declaration of Absolute Nullity of Void
Petitioner’s residence or RTC Marriages and Annulment of Voidable Marriages
where the place the (A.M. No. 02-11-10-SC, March 15, 2003);
information is 2. Rule on Legal Separation (A.M. No. 02-11-11-SC,
gathered/collected/stored, at SC, CA, Sandiganbayan - March 15, 2003);
the petitioner’s option If the action concerns 3. Rule on Provisional Orders (A.M. No. 02-11-12-SC,
public data files of March 15, 2003);
government offices 4. Rule on Custody of Minors and Writ of Habeas
Change of name (Rule 103) Corpus in Relation to Custody of Minor Children (A.M.
If judicial - Where the person RTC No. 03-04-04, April 22, 2003);
applying for the change of 5. Summary of Judicial Proceedings under the Family
his name resides Code (Arts. 238-253, New Civil Code)
If administrative - a) Local Local civil registry or b. Proceedings for protection orders under the Violence
civil registry where the record Philippine consulate against Women and their Children Act (R.A. No. 9262)
sought to be changed is kept 1. Rule on Violence against Women and Children (A.M.
b) Local civil registry of the No. 04-10-11, October 19, 2004)
place of residence of c. Proceedings under the Arbitration Law (R.A. No. 876)
interested party (only if and Alternative Dispute Resolution Act (R.A. No. 9285)
petitioner migrated to 1. Arbitration; court-annexed mediation and judicial
another place in the dispute resolution (A.M. No. 01-10-5-SC-PHILJA,
Philippines and it would be October 16, 2001).
impractical to file in the place
where records sought to be
changed are kept) c)
Philippine consulates (only
for Philippine citizens who
reside in foreign countries)
SAN BEDA COLLEGE OF LAW 181

SETTLEMENT OF ESTATE OF RULE 73

DECEASED PERSONS VENUE AND PROCESSES
RULES 73-90 SECTION 1. WHERE ESTATE OF DECEASED

PERSONS SETTLED
Different modes of settlement of estate of a deceased
person/presumed dead Jurisdiction: It depends upon the gross value of the
1. Extrajudicial Settlement of Estate (Section 1, Rule 74); estate of the decedent:
2. Summary Settlement of Estate of Small Value (Section 1. In Metro Manila – MTC: gross value does not exceed
2, Rule 74); PhP400,000.00, otherwise, RTC;
3. Partition (Rule 69); 2. Outside Metro Manila – MTC: gross value does not
4. Probate of Will (Rule 75 to 79); exceed PhP300, 000.00, otherwise, RTC (Sec. 19(4),
5. Petition for Letters of Administration in cases of Sec. 33(1), B.P. Blg. 129).
Intestacy (Rule 79); .
Note: Jurisdiction over the subject matter is determined
Procedure in settlement proceedings (Judicial) by the allegations in the petition; (Cadimas v. Carrion,
G.R. No. 180394, September 29, 2008); hence, it is not
Petition for Probate of will, if any (Rule 75-76) the actual gross value of the estate, which is the basis of
jurisdiction but the alleged gross value of the estate.
Court order fixing the time and place for probate. Venue
1. Inhabitant (Resident) of the Philippines (whether citizen
or alien) – Court of the province/city where he resides at
Publication of hearing for 3 successive weeks. Notice the time of death.
shall also be given to the designated/known heirs, 2. Inhabitant (Resident) of Foreign Country – Court of any
legatees and devisees, and the executor if the one province wherein he had his estate (Sec. 1, Rule 73).
petitioning for allowance of the will is not the testator.
Residence
Residence means his personal, actual or physical
Issuance of Letters habitation, his actual residence or place of abode (Fule v.
Testamentary/Administration (A special Court of Appeals, G.R. No. L-40502, November 29, 1976).
administrator may be appointed) (Rules 77-80)
Where the proceeding was commenced with a court of
improper venue, as where the decedent was neither a
Publication of Notice for Filing Claims resident at the time of his death nor had estate therein,
and such objection was seasonably raised in the probate
court, the petition should be dismissed and the
Filing of Claims (Rule 86) proceedings should be instituted in the proper court
(Eusebio v. Eusebio, et. al,. G.R. No. L-8409, December
28, 1956).
Issuance of Order of Payment or Sale of
Properties Remedy if venue is improperly laid
General Rule: Ordinary appeal not certiorari or
prohibition.
Payment of Claims:
Sale/Mortgage/Encumbrance of estate Exception: If want of jurisdiction appears on the record of
properties. the case (Sec. 1, Rule 73).
The judicial settlement of a decedent’s estate is a

Distribution of remainder, if any proceeding in rem.
(But this can be made even before payment if
a bond is filed by the heirs).

Two kinds of settlement 5. The validity of a waiver of hereditary rights;

1. Extrajudicial settlement – a proceeding where the 6. The status of each heir;
decedent had left no will and no debts, and the heirs 7. Whether property in inventory is conjugal or exclusive
adjudicate the estate among themselves without property of deceased spouse;
seeking letters of administration (Sec. 1, Rule 74). 8. Matters incidental or collateral to the settlement and
2. Judicial settlement – Testate or intestate proceeding distribution of the estate (Regalado, Remedial Law
instituted in the country where decedent had his Compendium Vol. II, 2008 ed., p. 13).
residence at the time of his death or had estate if a
nonresident (Sec. 2, Rule 74). Exclusionary Rule
a. Summary judicial proceedings (if the value of estate General Rule: The court first taking cognizance of the
is below PhP10,000); settlement of the estate of the decedent shall exercise
b. Regular settlement proceedings jurisdiction to the exclusion of all other courts.
Extent of jurisdiction: Probate courts are courts of The probate court acquires jurisdiction from the moment
limited jurisdiction. it may only determine and rule upon the petition for the settlement of estate is filed with said
issues relating to the settlement of the estate, namely: court. It cannot be divested of such jurisdiction by the
(LAD) subsequent acts of the parties as by entering into
1. L iquidation of the estate; extrajudicial partition of the estate (Sandoval v. Santiago,
2. A dministration of the estate; and G.R. No. L-1723, May 30, 1949); or by filing another
3. D istribution of the estate (Herrera, Special Proceedings petition for settlement in a proper court of concurrent
and Special Rules Implementing the Family Courts Act venue (Rodriguez v. De Borja, G.R. No. L-21993, June
of 1997, 2005 ed., p. 12). 21, 1966).
General Rule: Probate court cannot determine issue of Exception: Estoppel by Laches
ownership.
Note: Jurisdiction under Rule 73 Sec. 1 does not relate to
Exceptions: jurisdiction per se but to venue. Hence, institution in a
1. Ownership may be provisionally determined for the court where the decedent is neither an inhabitant nor had
purpose of including property in inventory, without his estate may be the subject of waiver (Uriarte v. CFI,
prejudice to its final determination in a separate action G.R. No. L-21938-39, May 29, 1970).
(Vda. De Valera, et al., v. Inserto et al., G.R. No. 56504,
May 7,1987); SECTION 2. WHERE THE ESTATE SETTLED UPON
2. When all the parties are heirs and they submit the issue DISSOLUTION OF MARRIAGE
of ownership to the probate court provided that the Upon the death of either the husband or the wife, the
rights of third parties are not prejudiced (Bernardo v. partnership affairs must be liquidated in the testate or
Court of Appeals, G.R. No. L-18148, Feb. 28, 1963); intestate proceedings of the deceased husband or wife. If
3. Question is one of collation or advancement (Coca, et both have died, liquidation may be made in the testate or
al., v. Pangilinan et al., G.R. No. L-27082, Jan. 31, intestate proceedings of either (Bernardo, et. al. v. Court
1978). of Appeals, et. al., G.R. No, L-18148, February 28, 1963).
The RTC acting in its general jurisdiction is devoid of SECTION 3. PROCESS

authority to render adjudication and resolve the issue of The RTC may issue warrants and processes to compel
advancement of the real property in favor of an heir since the attendance of witnesses.
reconveyance and annulment of title with damages is not
the proper vehicle to thresh out said question (Natcher v. Writ of Execution
Court of Appeals, G.R. No. 133000, October 2, 2001).
General Rule: Probate court cannot issue writs of
Other questions which the probate court can execution.
determine
1. Who the heirs of the decedent are; Ratio: Its orders usually refer to the adjudication of claims
2. The recognition of a natural child; against the estate which the executor/administrator may
3. The validity of disinheritance effected by the testator; satisfy without the need of executory process (Regalado,
4. Status of a woman who claims to be the lawful wife of p.14).
the decedent;

SECTION 1. EXTRAJUDICIAL SETTLEMENT BY

Exceptions: (CEE) AGREEMENT BETWEEN HEIRS
1. To satisfy the c ontributive share of the devisees,
legatees and heirs when the latter had entered prior Extrajudicial Settlement
possession over the estate (Sec. 6, Rule 88);
2. To enforce payment of the e xpenses of partition (Sec. Procedure in extrajudicial settlement by agreement
3, Rule 90); between/among heirs
3. To satisfy the costs when a person is cited for
e xamination in probate proceedings (Sec. 13, Rule Division of estate in public
142). instrument or affidavit of
adjudication
Under the rule of inclusio unius est exclusio alterius, these
should be the only instances when the probate court can
issue writ of execution (Vda. De Valera, et al., v. Ofilada, The public instrument or
et al., G.R. No. L-27526, Sept. 12, 1974). affidavit of adjudication must
be filed with the proper
SECTION 4. PRESUMPTION OF DEATH Registry of Deeds
There is no need for an independent action for Declaration
of Presumptive Death for purposes of Succession.
Publication of notice of the
The returning absentee’s recovery of his estate is subject fact of extrajudicial settlement
to the following conditions: once a week for 3 consecutive
1. All his debts must have been paid; weeks in a newspaper of
2. He shall recover his property in the condition in which it general circulation
may be found together with the price of any property
that may have been alienated or the property acquired
therewith; Filing of bond equivalent to
3. He is not entitled to the fruits of the rent (Art. 392, New the value of personal property
Civil Code). with the proper Registry of
Deeds
Requisites:
RULE 74 A. Substantive
1. The decedent left -
SUMMARY SETTLEMENT OF
a. No will;
ESTATES b. No debts.
2. The heirs are all of age or the minors are
General Rule: The settlement of the estate of the represented by their judicial or legal representatives
decedent should be judicially administered through an duly authorized for the purpose.
administrator or executor. B. Procedural
1. Division of estate must be in a public instrument or
Exception: by affidavit of self-adjudication in the case of a sole
The heirs may resort to: heir;
1. Extrajudicial settlement of estate (Sec.1); 2. Filed with proper Registry of Deeds;
2. Summary settlement of estates of small value (Sec. 2). 3. Publication of notice of the fact of extrajudicial
settlement once a week for 3 consecutive weeks;
Note: In both exceptional circumstances, an administrator 4. Filing of the bond with the Register of Deeds
or executor need not be appointed. equivalent to the value of personal property. (Sec.
1, Rule 74).
Note: The bond is required only when personalty is

involved. If it is a real estate, it shall be subject to a lien in
favor of creditors, heirs or other persons for the full period
of 2 years from such distribution and such lien cannot be

substituted by a bond (Rebong v. Ibañez, G.R. No. L- settlement is entered into (Guico v. Bautista, G.R. No. L-
1578, September 30, 1947). 14921, December 31, 1960).
The bond is the value of the personal property certified by Disputable presumption that decedent left no debts: If
the parties under oath and conditioned upon payment of no creditor files a petition for letters of administration
just claims filed under Sec. 4, Rule 74. within 2 years after the death of the decedent it is
presumed that the estate left no debts (Sec. 1, Rule 74).
Affidavit of Self Adjudication
An affidavit required by Sec 1 of Rule 74 to be executed Note: Section 1, Rule 74 does not preclude the heirs from
by the sole heir of a deceased person in adjudicating to instituting administration proceedings even if the estate
himself the entire estate left by the decedent. has no debts or obligations, if they do not desire to resort,
for good reasons, to an ordinary action for partition
Is a public instrument necessary for the validity of an (Rodriguez v. Tan, G.R. No. L-6044, November 24, 1952).
extra-judicial settlement? No. A private
instrument/document or oral agreement of partition as well “Good reason” depends on the circumstances of each
as a compromise agreement entered without previous case (Pereira v. CA, et al., G.R. No. 81147, June 20,
authority of the court is valid among the heirs who 1989).
participated in the extrajudicial settlement. The
requirement under Sec. 1, Rule 74 that it must be in a SECTION 2. SUMMARY SETTLEMENT OF ESTATES
public instrument is not constitutive of the validity but is OF SMALL VALUE
merely evidentiary in nature (Hernandez v. Andal, G.R. The gross value of the estate must not exceed
No. L-273, March 29, 1947). Under the new Rules, it PhP10,000.
would appear that a public instrument is now required for
registration. If the settlement is in a private instrument, it is In accordance with B.P. Blg. 129, the summary settlement
believed that the same is still valid and reformation of the of estates of small value is within the jurisdiction of the
instrument may be compelled (Arts. 1359, et. seq., New MTCs.
Civil Code).
Important Requirements:
Summary 1. Application must contain allegation of gross value of
Extrajudicial Settlement estate;
Settlement
Requires summary judicial 2. Date for hearing:
No court intervention. a. Shall be set by court not less than 1 month nor more
adjudication.
Value of the estate is Gross estate must not than 3 months from date of last publication of notice;
immaterial. exceed PhP10,000. b. Order of hearing published, once a week for 3
Allowed only in intestate Allowed in both testate and consecutive weeks in a newspaper of general
succession. intestate circulation.
There must be no It is available even if there 3. Notice shall be served upon such interested persons as
outstanding debts of the are debts; it is the court the court may direct;
estate at the time of which will make provision 4. Bond in an amount fixed by the court (not value of
settlement. for its payment. personal property) conditioned upon payment of just
May be instituted by any claims under Sec. 4.
Resorted at the instance
interested party even by a Procedure in summary settlement of estates of small
and by agreement of all
credit of the estate without value
heirs.
the consent of all heirs.
Application for summary settlement with an
Amount of bond is equal to
Amount of bond is to be allegation that the gross value of the estate
the value of personal determined by the court. does not exceed PhP10,000.00
property.
Bond is filed with the
Bond is filed with the court.
Register of Deeds.
Publication of notice of the fact of summary
Note: While the Rules provide that the decedent must not settlement once a week for 3 consecutive weeks in a
have left any debts, it is sufficient if any debts he may newspaper of general circulation (the court may also
have left have been paid at the time the extrajudicial order notice to be given to other persons as such
court may direct)

thereby, and contemplates a notice that has been sent out

Hearing to be held not less than 1 month nor or issued before any deed of settlement or partition is
more than 3 months from the date of the last agreed upon, and not after such agreement has already
publication of notice court may direct) been executed. The publication of the settlement does not
constitute constructive notice to the heirs who had no
knowledge or did not take part because the same was
Court to proceed summarily, without appointing notice after the fact of execution. The requirement of
an executor/administrator, and to make orders as publication is geared for the protection of creditors and
may be necessary, such as: was never intended to deprive heirs of their lawful
a) Grant allowance of the will, if any; participation in the estate (Benatiro v. Heirs of Cuyos,
b) Determine persons entitled to estate; G.R. No. 161220, July 28, 2008).
c) Pay debts of estate which are due
Note: The other heirs are also not bound by the
extrajudicial settlement should the Deed of Extrajudicial
Filing of the bond fixed by the court Partition or Affidavit of Self-Adjudication be false (Sec. 4 in
relation to Sec. 1).
Partition of the estate Remedies of the Aggrieved Parties after Settlement of
the Estate
SECTION 3. BOND TO BE FILED BY DISTRIBUTEES 1. Within 2 years - claim against the bond or the real
The amount of bond required under a summary settlement estate or both (Sec.4, Rule 74);
is determined by the court, unlike in an extrajudicial 2. Rescission in case of preterition of compulsory heir in
settlement where the amount is equal to the value of the partition tainted with bad faith (Article 1104, NCC);
personal property as established by the instrument of 3. Reconveyance of real property;
adjudication (Regalado, p. 21). 4. Action to annul a deed of extrajudicial settlement on the
ground of fraud which should be filed within 4 years
SECTION 4. LIABILITY OF DISTRIBUTEES AND from the discovery of fraud;
ESTATE 5. Petition for Relief on the ground of FAME – f raud,
a ccident, m istake, e xcusable negligence – 60 days
When settlement of estates in the courts may be after the petitioner learns of the judgment, final order or
compelled: other proceeding to be set aside, and not more than 6
1. If there is an undue deprivation of lawful participation in months after such judgment or final order was entered
the estate; (Rule 38);
2. The existence of debts against the estate; or 6. Reopening by Intervention within anytime before
3. If there is an undue deprivation of lawful participation rendition of judgment, as long as it is within the
payable in money. reglementary period of 2 years;
7. New action to annul settlement within reglementary
Note: The bar against distributees from objecting to an period of 2 years.
extrajudicial partition after the expiration of two years is
applicable only: An heir deprived of his share may file an action for
a. To persons who have participated or taken part or had reconveyance based on an implied or constructive trust
notice of the extrajudicial partition, and which prescribes 10 years from the date of registration or
b. When all the persons or heirs of the decedent have date of issuance of certificate of title or from actual
taken part in the extrajudicial settlement (Sampio v. discovery of fraud if the registration was made in bad faith
Court of Appeals, G.R. No. L-10474, February 28, (Marquez v. Court of Appeals, G.R. No. 125715,
1958). December 29, 1998).
Is a person who had no knowledge or had not Where the estate has been summarily settled, the unpaid
participated in the extrajudicial settlement bound creditor may, within 2 years, file a motion in court
thereby by reason of constructive notice of wherein such summary settlement was had, for the
publication? No. Extrajudicial settlement under Sec. 1 of payment of his credit.
Rule 74 is an ex parte proceeding, and the rule plainly
states that persons who do not participate or had no
notice of an extrajudicial settlement will not be bound

After the lapse of 2 years, an ordinary action may be 4. The doctrine of estoppel does not apply.
instituted against the distributees within the statute of The presentation and probate of the will is required by
limitations but not against the bond. public policy. It involves public interest (Fernandez v.
Dimagiba, G.R. No. L-23638, October 12, 1967).
The 2-year lien upon the real property distributed by
extrajudicial or summary settlement shall be annotated on SECTION 2. CUSTODIAN OF WILL TO DELIVER
the title issued to the distributees and after 2 years will be The custodian must deliver the will to the court or to the
cancelled by the register of deeds without need of court executor within 20 days after he learns of the death of the
order (Land Registration Commission Circular 143 dated testator.
January 28, 1964).
SECTION 3. EXECUTOR TO PRESENT WILL AND
Such lien cannot be discharged nor the annotation be ACCEPT OR REFUSE TRUST
cancelled within the 2 year period even if the distributees The executor, within 20 days after he knows of the
offer to post a bond to answer for contingent claims from testator’s death or after he knows that he is named an
which lien is established (Rebong v. Ibañez, G.R. No. L- executor if he knows it after the testator’s death, shall:
1578, September 30, 1947). 1. Present the will to the court (unless it has reached the
court in any other manner); and
SECTION 5. PERIOD FOR CLAIM OF MINOR OR 2. Signify in writing his acceptance or refusal of the trust.
INCAPACITATED PERSON
If on the date of the expiration of the two-year period, the SECTION 4. CUSTODIAN AND EXECUTOR SUBJECT
creditor or heir is: TO FINE FOR NEGLECT
1. A minor; or A fine not exceeding PhP2,000.
2. Incapacitated; or
3. In prison; or SECTION 5. PERSON RETAINING WILL MAY BE
4. Outside the Philippines. COMMITTED
He may present his claim within one year after such Probate
disability is removed (Sec. 5 Rule 75). The act of proving in a court a document purporting to be
the last will and testament of a deceased person in order
that it may be officially recognized, registered and its
RULE 75 provisions carried out insofar as they are in accordance
PRODUCTION OF W ILL with the law (also referred to as allowance of the will)
ALLOWANCE OF W ILL NECESSARY (Jurado, Comments and Jurisprudence on Succession,
2009, 9th Edition, p. 134).
SECTION 1. ALLOWANCE NECESSARY.

CONCLUSIVE AS TO EXECUTION RULE 76
ALLOWANCE OR DISALLOWANCE
Nature of probate proceedings
OF W ILL
1. In Rem: binding on the whole world (Regalado, p. 31).
2. Mandatory: no will shall pass either real or personal
property unless it is proved and allowed in the proper SECTION 1. WHO MAY PETITION FOR THE
court (Sec. 1, Rule 75). ALLOWANCE OF WILL
1. Executor;
However, a will may be sustained on the basis of Article 2. Devisee or legatee named in the will;
1080 of the Civil Code which states that: “If the testator 3. Person interested in the estate (e.g. heirs);
should make a partition of his properties by an act inter An interested party is one who would be benefited by
vivos, or by will, such partition shall stand in so far as it the estate, such as an heir, or one who has a claim
does not prejudice the legitime of the forced heir” against the estate, such as a creditor (Sumilang v.
(Mang-Oy v. Court of Appeals, G.R. No. L-27421, Ramagosa, G.R. No. L-23135, December 26, 1967).
September 12, 1986). 4. Testator himself during his lifetime;
5. Any creditor - as preparatory step for filing of his claim
3. Imprescriptible – because of the public policy to obey therein (Regalado, p.30).
the will of the testator.

Who may be a party in probate? In general, any person Meaning of due execution (FM-VPS)
having a direct and material interest in the will or estate 1. That the will was executed strictly in accordance with
(Trillana v. Crisostomo, G.R. No. L-3378, August 22, the f ormalities required by law;
1951). 2. That the testator was of sound and disposing m ind
when he executed the will;
SECTION 2. CONTENTS OF PETITION 3. That there was no v itiation of consent through duress,
1. The jurisdictional facts – death of the testator and his fear or threats;
residence at the time of death or the province where 4. That it was not procured by undue or improper p ressure
estate was left by the decedent who is a non-resident; or i nfluence on the part of the beneficiary, or some
2. The names, ages, and residences of the heirs, other person for his benefit;
legatees, and devisees of the testator or decedent; 5. That the s ignature of the testator is genuine, i.e., it was
3. The probable value and character of the property of the not procured through fraud and that the testator
estate; intended that what he executed was his last will and
4. The name of the person for whom letters are prayed; testament (Art. 839, New Civil Code).
and
5. The name of the person having custody of the will if it SECTION 3. COURT TO APPOINT TIME FOR PROVING
has not been delivered to the court. WILL; NOTICE THEREOF TO BE PUBLISHED
The probate of a will is a proceeding in rem and the
But no defect in the petition shall render void the publication provided for by this Rule is a jurisdictional
allowance of the will, or the issuance of letters requirement. The personal service of notice upon the heirs
testamentary or of administration with the will annexed. is a matter of procedural convenience and not a
jurisdictional requisite. (Regalado, p. 31)
Effect of the probate of a will: It is conclusive as to the
execution and validity of the will (even against the State). If the petition for probate is on the testator’s own initiative
Thus, a criminal case against the forger may not lie after during his lifetime (Ante Mortem):
the will has been probated (Jurado, p. 144). 1. No publication is necessary (Sec. 3); and
2. Notice shall be made only to the compulsory heirs (Sec.
May Sec. 1, Rule 76 be waived since it is just a 4).
procedural requirement? No because the same
requirement is embodied in Art. 838 of the Civil Code, Note: Three (3) weeks successively is not strictly 21 days.
which is a substantive law. It is sufficient that publication has been made once a
week successively three times, even if less than twenty-
Issue in the probate of a will one days intervened between the first and last publication
General Rule: Only determination of the extrinsic validity (Basa v. Mercado, G.R. No. L-42226, July 26, 1935).
not the intrinsic validity or validity of testamentary
dispositions. SECTION 4. HEIRS, DEVISEES, LEGATEES, AND
EXECUTORS TO BE NOTIFIED BY MAIL OR
Exceptions: PERSONALLY
Principle of practical considerations
1. The waste of time, effort, expense plus added anxiety Persons to be Given Notice:
are the practical considerations that induced the SC to 1. Designated or known heirs, legatees and devisees; and
a belief that we might as well meet head-on the issues 2. Executor and co-executor if not the petitioner.
of the validity of the provisions of the will in question
(Nuguid v. Nuguid, G.R. No. L-23445, June 23, 1966). Modes of Notification
2. Where the entire or all testamentary dispositions are 1. If by mail: 20 days before hearing
void and where the defect is apparent on its face (Acain 2. If through personal service: 10 days before hearing.
v. Intermediate Appellate Court, G.R. No. 727 SECTION 5. PROOF AT HEARING. WHAT SUFFICIENT
06, IN ABSENCE OF CONTEST
October 27, 1987; Nepumuceno v. Court of Appe At the hearing, compliance of publication and notice must
als, first be shown before introduction of testimony in support
G.R. No. L-62952, October 9, 1985). of the will.
Extrinsic Validity
Means due execution of the will.
188
SAN BEDA COLLEGE OF LAW
Evidence required in support of a will will is contested, 3 witnesses who know the
1. Uncontested Will handwriting and signature of the testator are now
a. Notarial Wills: Testimony of at least one of the required/mandatory to prove its authenticity and for
subscribing witnesses may be allowed, if such its allowance.
witness testifies that the will was executed as is
required by law (Sec.5). General Rule: A holographic will if destroyed cannot be
i. If all subscribing witnesses reside outside the probated.
province – deposition is allowed (Sec.7).
ii. If the subscribing witnesses are dead, insane, or Exception: If there exists a Photostatic or Xerox copy
none of them resides in the Philippines – The thereof (Gan v. Yap, G.R. No. L-12190, August 30, 1958).
court may admit testimony of other witnesses to
prove the sanity of the testator, and the due Note: In the case of a contested notarial will, it is the duty
execution of the will, and as evidence of the of the petitioner to produce all the available attesting
execution of the will, it may admit proof of the witnesses and the notary public, but he is not concluded
handwriting of the testator and of the subscribing by the testimony of said witnesses, even if adverse, as the
witnesses or of any of them (Sec. 8). court may still admit the will to probate on the basis of
other satisfactory evidence (Fernandez v. Tantoco, G.R.
b. Holographic Wills: the testimony of one witness who No. 25489, September 8, 1926). This is an exception to
knows the handwriting and signature of the testator. the rule that a party is generally bound by the testimony or
In the absence thereof and if the court deem it evidence that he presents, because here, unlike ordinary
necessary, expert testimony may be resorted to. actions, he has no choice in the evidence as he is duty-
bound to account for all attesting witnesses. It has been
In case of a holographic will, it is not mandatory that held that the testimony of the notary before whom the will
witnesses be first presented before expert testimony was acknowledged will prevail over that of the two
may be resorted to, unlike notarial wills wherein the attesting witnesses who claim undue execution of the will
attesting witnesses must first be presented or (Ramos, et. al. v. Court of Appeals, et. al. G.R. No. L-
accounted for (Azaola v. Singson, G.R. No. L-14003, 40804, January 31, 1978).
August 5, 1960). This is so because holographic wills
are not required to be witnessed and the existence of SECTION 6. PROOF OF LOST OR DESTROYED WILL.
a qualified witness may be beyond the control or CERTIFICATE THEREUPON
knowledge of the proponent of the will (Regalado, p. This section applies to a lost or destroyed notarial will and
35). not to a holographic will.
2. Contested Will Facts which should be proved in order that a lost or

a. Notarial Wills: All subscribing witnesses and the destroyed will may be allowed:
notary public before whom the will was acknowledged 1. That the will has been duly executed by the testator;
must be produced and examined (Sec. 11). 2. That the will was in existence when the testator died, or
if it was not, that it has been fraudulently or accidentally
However, if any or all the witnesses (i) testify against destroyed in the lifetime of the testator without his
the execution of the will, (ii) do not remember knowledge; and
attesting thereto, or (iii) are of doubtful credibility, the 3. The provisions of the will are clearly established by at
will may be allowed if the court is satisfied from the least two credible witnesses.
testimony of other witnesses and from all the
evidence presented that the will was executed and SECTION 7. PROOF WHEN WITNESSES DO NOT
attested in the manner required by law (An instance RESIDE IN PROVINCE
where a party may impeach his own witness).
SECTION 8. PROOF WHEN WITNESSES DEAD OR
b. Holographic Wills: 3 witnesses who know the INSANE OR DO NOT RESIDE IN THE PHILIPPINES
handwriting of testator. In the absence thereof and if
the court deem it necessary, testimony of an expert SECTION 9. GROUNDS FOR DISALLOWING WILL
witness may be resorted to.
Grounds provided for are exclusive: (FIDUS)
However, in Codoy v. Calugay (G.R. No. 123486, 1. If not executed and attested as required by law;
Aug. 12, 1999), the SC ruled that if the holographic (f ormalities)

2. If the testator was i nsane, or otherwise mentally handwriting shall be sufficient evidence of the
incapable to make a will, at the time of its execution; genuineness and due execution thereof.
3. If it was executed under d uress, or the influence of fear,
or threats; In case of contest, the burden of proof is on the
4. If it was procured by u ndue and improper pressure and contestant.
influence, on the part of the beneficiary, or of some
other person for his benefit; SECTION 13. CERTIFICATE OF ALLOWANCE
5. If the s ignature of the testator was procured by fraud or ATTACHED TO PROVED WILL. TO BE RECORDED IN
trick, and he did not intend that the instrument should THE OFFICE OF REGISTER OF DEEDS.
be his will at the time of fixing his signature thereto. Order for probate is final. Thus, it is appealable.
Substantial Compliance Rule

If the will has been executed in substantial compliance RULE 77
with the formalities of the law, and the possibility of bad ALLOWANCE OF W ILL PROVED
faith and fraud is obviated, said will should be admitted to OUTSIDE OF PHILIPPINES AND
probate (Art. 809, NCC).
A DMINISTRATION OF ESTATE
Separate wills which contain essentially the same THEREUNDER
provisions and pertain to properties which in all probability
are conjugal in nature, practical considerations dictate SECTION 1: WILL PROVED OUTSIDE THE
their joint probate (Vda. De Perez v. Tolete, G.R. No. PHILIPPINES MAY BE PROVED HERE.
76714, June 2, 1994). It is a requirement that a will which was probated in a
foreign country be re-probated in the Philippines. If the
Separate Wills probated jointly in view of decedent owns properties in different countries, separate
simultaneous deaths of the spouses testators: A literal proceedings must be had to cover the same.
application of the rules should be avoided if they would
only result in the delay in the administration of justice. SECTION 2: NOTICE OF HEARING FOR ALLOWANCE.
What the law expressly prohibits is the making of joint What should be filed:
rd
wills either for testators reciprocal benefit or of 3 person. Petition for allowance accompanied with:
Wills of the decedent spouse are essentially similar in 1. Authenticated copy of the will
disposition and property; joint probate was allowed (Acain 2. Authenticated decree of the allowance thereof.
v. IAC, G.R. No. 72706, October 27,1987).
The court will then fix a time and place for hearing and
Law governing forms of wills: cause notice thereof to be given.
The law in force at the time of the execution of a will (Art.
795, NCC). With regard to notices, the will probated abroad should be
treated as if it were an original will or a will presented for
SECTION 10. CONTESTANT TO FILE GROUNDS OF probate for the first time. Accordingly, compliance with
CONTEST Sections 3 and 4 of Rule 76, which require publication and
notice by mail or personally to the known heirs, legatees,
Contestant must: and devisees of the testator resident in the Philippines
1. State in writing his grounds for opposing the allowance and to the executor, if he is not the petitioner, are required
of the will; and (Salud Teodoro Vda. De Perez v. Hon. Zotico A. Tolete,
2. Serve a copy thereof to petitioner and other interested G.R. No. 76714, June 2, 1994).
parties.
Matters to be proven during a re-probate proceeding:
SECTION 11. SUBSCRIBING WITNESSES PRODUCED 1. That the testator was domiciled in a foreign country;
OR ACCOUNTED FOR WHERE WILL CONTESTED 2. That the will has been admitted to probate in such
country;
SECTION 12. PROOF WHERE TESTATOR PETITIONS 3. That the foreign court was, under the laws of said
FOR ALLOWANCE OF HOLOGRAPHIC WILL foreign country, a probate court with jurisdiction over the
If there is no contest, the fact that the testator affirms that proceedings;
the holographic will and the signature are in his own 4. The law on probate procedure in said foreign country
proof of compliance therewith; and

5. The legal requirements in said foreign country for the 3. Administrator with a will annexed – the one
valid execution of the will (De Perez v. Tolete, supra). appointed by the court in cases when, although there is
a will, the will does not appoint any executor, or if
Effects of the allowance of a will under Rule 77: appointed, said person is either incapacitated or
1. The will shall be treated as if originally proved and unwilling to serve as such (Rule 79, Section 1).
allowed in Philippine courts;
2. Letters testamentary or administration with a will Who may serve as an executor or administrator? Any
annexed shall extend to all estates in the Philippines; competent person may serve as executor or administrator.
3. After payment of just debts and expenses of
administration, the residue of the estate shall be SECTION 1. WHO ARE INCOMPETENT TO SERVE AS
disposed of as provided by law in cases of estates in EXECUTORS OR ADMINISTRATORS
the Philippines belonging to persons who are 1. A minor;
inhabitants of another state or country. 2. A non-resident;
3. One who in the opinion of the court is unfit to exercise
Note: In the absence of proof of the foreign law, it is the duties of the trust by reason of:
presumed that it is the same as that in the Philippines a. Drunkenness – when the habits of drink are carried
(Doctrine of Processual Presumption). so far as to cloud the brain and weaken their respect
for honesty and integrity; The drunkenness
The venue for the petition for re-probate is the same as contemplated by this statute, undoubtedly, is that
that provided for in Rule 73. excessive, inveterate and continued use of
intoxicants, to such an extent as to render the subject
A will of a foreigner executed abroad can be probated in of the habit as unsafe against to entrust with the care
the Philippines without need of being probated abroad. of property or the transaction of business (Herrera, p.
Art. 816 of the Civil Code states that the will of an alien 78).
who is abroad produces effect in the Philippines if made in b. Improvidence – means the want of care and
accordance with the formalities prescribed by the law of foresight in the management of property which would
the place where he resides, or according to the formalities be likely to render the estate and effects of the
observed in his country. Reprobate of a will already intestate unsafe and liable to be lost or diminished in
probated and allowed in a foreign country is different from value (Black’s Law Dictionary, 5 thed., p.682).
that probate where the will is presented for the first time c. Want of understanding – amounts to lack of
before a competent court. Reprobate is specifically intelligence such as would or might subject one to
governed by Rule 77. In reprobate, the local court sinister influence or coercion against the general
acknowledges as binding the findings of the foreign interest of the estate (Herrera, p.80).
probate court provided its jurisdiction over the matter can d. Want of integrity – integrity is synonymous to
be established. If the instituted heirs do not have the probity, honesty and uprightness in business relations
means to go abroad for the probate of the will, it is as with others. The accusation should be certain and
good as depriving them outright of their inheritance (In Re: grave in its nature (Herrera, p.80).
Palaganas, G.R. No. 169114, 26 January 2011). e. Conviction for an offense involving moral
turpitude – an act of baseness, vileness or depravity
in the private and social duties which a man owes his
RULE 78 fellow men, to society in general, contrary to the
LETTERS TESTAMENTARY AND OF accepted and customary rule of right and duty
ADMINISTRATION, WHEN AND TO between man and woman or conduct contrary to
justice, honesty, modesty or good morals (Zari v.
WHOM I SSUED
Flores, A.M. No. (2170-MC) P-1356 November 21,
1979).
Who can administer the estate? 4. The executor of an executor cannot administer the
1. Executor – the one named by the testator in his will for estate of the first testator (Sec. 2).
the administration of his property after his death.
2. Administrator, regular or special – the one appointed Executor and Administrator; Distinguished
by the Court in accordance with the Rules or governing Executor Administrator
statutes to administer and settle the intestate estate Appointed by the court in
(Rule 80). Nominated by the testator
case the testator did not
and appointed by court.
appoint an executor or if

Executor Administrator named in the will refused to accept the office or if the
the executor refused person name is incompetent.
appointment (administrator
with a will annexed) or if the SECTION 5. WHERE SOME CO-EXECUTORS
will was disallowed or if a DISQUALIFIED, OTHERS MAY ACT
person did not make a will
(intestate succession). SECTION 6. WHEN AND TO WHOM LETTERS OF
Must present will to the ADMINISTRATION GRANTED
court within 20 days after
he knows of the death of Order of preference in granting letters of
testator or after he knew administration
that he was appointed as 1. The surviving husband or wife or the next of kin, or both
executor (if he obtained No such duty. in the discretion of the court, or to such person as such
such knowledge after death surviving spouse or next of kin, requests to have
of testator), unless the will appointed, if competent and willing to serve (surviving
has reached the court in spouse or next of kin or their nominee);
any manner.
Testator may provide that Next of Kin
he may serve without a Those persons who are entitled by law to receive the
bond (but court may direct Required unless exempted decedent’s property (Regalado, p. 46).
him to give a bond by law
conditioned only to pay 2. If the surviving spouse or the next of kin or the person
debts). selected by them be incompetent or unwilling to serve,
Compensation may be or if the surviving spouse or next of kin neglects for 30
provided for by the testator Compensation is governed days after the death of the decedent to apply for
in the will, otherwise Sec. 7, by Sec. 7, Rule 85. administration by them or their nominee, any one or
Rule 85 will be followed. more of the principal creditors, if competent and willing
to serve;
SECTION 2. EXECUTOR OF EXECUTOR NOT TO However, neglect of such persons to apply for letters
ADMINISTER ESTATE administration for 30 days after death is not sufficient to
exclude the widow from the administration of the estate
SECTION 3. MARRIED WOMEN MAY SERVE of her husband. There must be a very strong case to
justify the exclusion of the widow from the
SECTION 4. LETTERS TESTAMENTARY ISSUED administration (Herrera, p. 84).
WHEN WILL ALLOWED
3. If there is no such creditor competent and willing to
Testamentary Privilege serve, it may be granted to such other person as the
The right given by law to a person to dispose of his court may select (stranger).
property when he dies.
Note: As a general rule, the court cannot set aside the
Letters Testamentary order of preference under Sec. 6 Rule 78.
An authority issued to an executor named in the will to
administer the estate (Festin, p. 46). Exception: In case the persons who have the preferential
right to be appointed under the rule are not competent or
Letters of Administration are unwilling to serve, administration or they neglect to
An authority issued by the court to a competent person to apply for letters of administration for 30 days after the
administer the estate of the deceased who died intestate decedent’s death, the letters may be granted to such
(Festin, p. 46). other person as the court may appoint.
Letters of Administration with a Will Annexed The order of appointment of regular administrator is final
An authority issued by the court to a competent person to and appealable.
administer the estate of the deceased if the executor

Basis for the preferential right: The underlying The opposition may be accompanied by a Petition for the
assumption is that those who will reap the benefits of a issuance of Letters of Administration with the will
wise, speedy and economical administration of the estate annexed.
or on the other hand, suffer the consequences of waste,
improvidence or mismanagement, have the higher interest SECTION 2. CONTENTS OF A PETITION FOR
and most influential motive to administer the estate LETTERS OF ADMINISTRATION
correctly (Gonzales v. Aguinaldo, G.R. No. 74769 1. The jurisdictional facts;
September 28, 1990). 2. The names, ages, residences of heirs and the names
and ages of the creditors;
Note: Co-administrators may be appointed for the benefit 3. The probable value and character of the estate; and
of the estate and those interested therein (Matute v. Court 4. The name of the person for whom letters are prayed for.
of Appeals, G.R. No. 26751, January 31, 1969).
No defect in the petition shall render void the issuance of
Scope or limits of administration: The general rule is the letters of administration.
that administration extends only to the assets of a
decedent found within the state or country where it was SECTION 3. COURT TO SET TIME FOR HEARING.
granted, so that an administrator appointed in one state or NOTICE THEREOF
country has no power over the property in another state or Publication for 3 weeks and notice to heirs, creditors and
country (Leon v. Manufacturers Life Insurance Co., G.R. other persons believed to have an interest in the estate is
No. L-3677, November 29, 1951). required before hearing.
Note: A party indebted to the decedent’s estate cannot Note: Sec. 3 of this Rule is jurisdictional. Where no notice
compatibly perform the duties of an administrator and as required by this section has been given to persons
should not be appointed as such (Lim v. Diaz-Millarez, believed to have an interest in the estate of the deceased
G.R. No. L-17633, October 19, 1966). Where such fact of person, the proceeding for the settlement of the estate is
indebtedness was only subsequently discovered after the void and should be annulled (Eusebio v. Valmores, G.R.
administrator had been duly appointed, he should not be No. L-7019, May 31, 1955).
removed, absent any other lawful ground (Dalisay, etc. v.
Consolacion, etc., G.R. No. L-44702, July 30, 1979). SECTION 4. OPPOSITION TO PETITION FOR
ADMINISTRATION
RULE 79 Grounds for Opposition:

OPPOSING I SSUANCE OF LETTERS 1. Incompetence;
2. Preferential right of the heir under Sec. 6, Rule 78.
TESTAMENTARY, PETITION AND
CONTEST FOR LETTERS OF SECTION 5. HEARING AND ORDER FOR LETTERS
ADMINISTRATION TO ISSUE
Letters of Administration shall issue if it is proven
SECTION 1. OPPOSITION TO ISSUANCE OF that:
LETTERS TESTAMENTARY. SIMULTANEOUS 1. Notice as required in Sec. 3 was given; and
PETITION FOR ADMINISTRATION 2. The decedent left no will; or there is no competent and
The main issue is the determination of the person who is willing executor.
rightfully entitled to administration.
SECTION 6. WHEN LETTERS OF ADMINISTRATION
Persons to oppose the issuance of letters: Any person GRANTED TO ANY APPLICANT
interested in the will. Letters can be granted to any person or any other
applicant even if other competent persons are present if
In order to be a party, a person must have material and the latter fail to claim their letters when notified by the
direct, and not one that is only indirect or contingent, court.
interest (Saguinsun v. Lindayag, G.R. No. L-17759,
December 17, 1962).

Appointed when there is

RULE 80 Appointed when decedent delay in granting letters
SPECIAL ADMINISTRATOR died intestate or did not testamentary or
appoint an executor in the administration or when the
will or will was disallowed. executor is a claimant of
SECTION 1. APPOINTMENT OF SPECIAL the estate.
ADMINISTRATOR
SECTION 2. POWERS AND DUTIES OF SPECIAL
Special Administrator ADMINISTRATOR
A representative of the decedent appointed by the probate 1. Possess and charge of the goods, chattels, rights,
court to care for and preserve his estate until an executor credits, and estate of the deceased and preserve the
or general administrator is appointed (Fule v. CA, G.R. same;
No. L-40502, November 29, 1976). 2. Commence and maintain suit for the estate;
3. Sell only:
Ancillary Administrator a. Perishable property; and
A person appointed by the court in a state where the b. Other property ordered sold by the court;
descendant was not domiciled to manage the assets and 4. Pay debts only as may be ordered by the court.
liabilities and to oversee the distribution of decedent’s
estate in that state. Such an administrator usually works The special administrator also has the duty to submit an
as an adjunct to the executor or administrator appointed in inventory and to render an accounting of his
the state where the decedent was domiciled (See Perkins administration as required by the terms of his bond (Sec
v. Benguet Cosolidated, Inc., Gr No. L-23145, November 4, Rule 81).
29,1968).
SECTION 3. WHEN POWERS OF SPECIAL
When may a probate court appoint a special ADMINISTRATOR CEASE. TRANSFER OF EFFECTS.
administrator? PENDING SUITS
1. Delay in granting of letters by any cause including
appeal in the probate of the will; When does the power of a special administrator
2. Executor is a claimant of the estate that he represents cease? After the questions causing the delay are
(Section 8, Rule 86). resolved and letters are granted to regular executor or
administrator.
Note: In the second instance, the administrator shall have
the same powers as that of a general administrator but Is an appointment of a special administrator
only insofar as the claim of the executor is concerned. appealable? No, as expressly provided for in Sec. 1, Rule
109.
Order of Appointment (Discretionary)
The preference accorded by Sec. 6 of Rule 78 of the The only remedy against the appointment of a special
Rules of Court to a surviving spouse refers to the administrator is Certiorari under Rule 65. Certiorari,
appointment of a regular administrator, not to that of however, requires nothing less than grave abuse of
special administrator, and that the order appointing the discretion (Tan v. Gedorio, Jr., G.R. No. 166520, 14
latter lies within the discretion of the probate court, and is March 2008). However, there must be a Temporary
not appealable (Pijuan v. De Gurrea, G.R. No. L- Restraining Order or Injunction Order to stop the Special
21917, November 29, 1966). Administrator from assuming the position (Sec. 7, Rule
65) .
Regular Administrator Special Administrator An appointment of a regular administrator is appealable
because it is a final order (De Borja v. Tan, G.R. No. L-
Order of Appointment is 6476, November 18, 1955). There are important duties
Order of Appointment is
interlocutory and is not devolving on a regular administrator which a special
final and is appealable.
appealable. administrator cannot perform, and there are many actions
One of the obligations is to Cannot pay debts of the to be taken by the court which could not be accomplished
pay the debts of the estate. estate. before a regular administrator is appointed (Reynoso v.
Santiago, G.R. No. L-3039, December 29, 1949).

Note: A special administrator is appointed only for a SECTION 2. BOND OF EXECUTOR WHERE DIRECTED
limited time and for a specific purpose. Naturally, because IN WILL WHEN FURTHER BOND REQUIRED
of the temporary and special character of his appointment, Even if the testator has directed in his will that his
it was deemed by the law not advisable for any party to executor serve without a bond, the court may still require
appeal from said temporary appointment (De Borja v. Tan, him to file a bond conditioned only to pay the debts of the
supra). testator.
While a special administrator may commence and SECTION 3. BONDS OF JOINT EXECUTORS AND
maintain suits under Sec. 2, he cannot be sued by a ADMINISTRATORS
creditor for the payment of the debts of the deceased (De
Gala v. Gonzales, et al., G.R. No. L-30289, March 26, SECTION 4. BOND OF SPECIAL ADMINISTRATOR
1929). Such suit must await the appointment of a regular
administrator. Conditions of the bonds
1. Make and return a true inventory;
2. Render accounting when required by court; and
RULE 81 3. Deliver the estate to the person appointed executor or
BONDS OF EXECUTORS AND administrator or other authorized persons.
ADMINISTRATORS
As long as the probate court retains jurisdiction of the
estate, the bond contemplates a continuing liability (Luzon
SECTION 1. BOND TO BE GIVEN BEFORE ISSUANCE Surety v. Quebrar, Gr No. L-40517, January 31, 1984).
OF LETTERS. AMOUNT. CONDITIONS.
When bond is filed: Before an executor or administrator RULE 82

enters upon the execution of his trust. REVOCATION OF ADMINISTRATION,
Amount: To be fixed by the court. DEATH, RESIGNATION AND
REMOVAL OF EXECUTORS AND
Purpose: It is intended as an indemnity to the creditors, ADMINISTRATORS
the heirs and the estate. It shall be accountable for any
breach of duty that may be done by the administrator or SECTION 1. ADMINISTRATION REVOKED IF WILL
executor. The liability may be enforced by motion or in a DISCOVERED. PROCEEDINGS THEREUPON
separate civil action (Festin, p.56).
When letters of administration revoked and powers
Conditions of the bonds: cease: When the decedent’s will is allowed and proved by
1. Make within 3 months a true and complete inventory of the court after the issuance of letters of administration.
the property of the deceased which came to his
knowledge and possession; Duty of administrator upon revocation of the letters
2. Administer the estate and pay and discharge all debts, 1. Surrender the letters to the court; and
legacies and charges, including dividends declared by 2. Render his account within such time as the court may
the court from the proceeds; direct.
3. Render a true and just account within one year and
when required by the court; Whether the intestate proceeding already commenced
4. Perform all orders of the court. should be discontinued and a new proceeding under a
separate number and title should be constituted is entirely
Administrator’s Bond – Statutory Bond Conditions a matter of form and lies within the sound discretion of the
prescribed by statute forms part of bond agreement. court (Reynoso v. Santiago, G.R. No. L-3039, December
Terms and effectivity of bond do not depend on payment 29, 1949).
of premium and does not expire until the administration is
closed. As long as the probate court retains jurisdiction of Note: Testate proceedings take precedence over intestate
the estate, the bond contemplates a continuing liability proceedings for the same estate.
(Luzon Surety v. Quebrar, G.R. No. L-40517, January 31,
1984). First court – intestate; second court – testate: As a
general rule, the court with which the petition is first filed

must take cognizance of the settlement of the intestate

estate. However, if it learns thereafter that another court The position of the administrator is one of confidence and
has before it a petition for the probate of the decedent’s when the court finds that the administrator is not entitled
will, it may hold the petition before it in abeyance and to such confidence, it is justified in withdrawing the
defer to the second court where the probate proceedings appointment and giving no valid efficacy thereto
are pending and if the will is admitted to probate therein, it (Cobarrubias v. Dizon, supra).
will definitely decline to take cognizance (Cuenco v. Court
of Appeals, G.R. No. L-24742, Oct. 26, 1973). Examples of valid removal of administrator
a. Disbursement of funds of the estate without judicial
Will discovered; administrator already appointed: If approval;
during the pendency of intestate proceedings, a will of the b. False representation by an administrator in securing his
decedent is discovered, proceedings for the probate of the appointment;
will shall replace the intestate proceedings even if an c. Holding an interest adverse to that of the estate or by
administrator had already been appointed therein (Cuenco his conduct shows unfitness to discharge the trust;
v. Court of Appeals, supra). However, the discovery of a d. Physical inability and consequent unsuitability to
document purporting to be the last will and testament of a manage the estate.
deceased, after the appointment of an administrator of the
estate of the latter, upon the assumption that he or she Degree of diligence required: An administrator is
had died intestate, does not ipso facto nullify the letters of required to exercise reasonable diligence and act in entire
administration already issued or even authorize the good faith in the performance of that trust.
revocation thereof, until the alleged will has been proved
and allowed by the court (Advincula v. Teodoro, G.R. No. SECTION 3. ACTS BEFORE REVOCATION,
L-9282, May 31, 1956). RESIGNATION OR REMOVAL TO BE VALID
Lawful acts of an administrator or executor before the
SECTION 2. COURT MAY REMOVE OR ACCEPT revocation, resignation, or removal are valid.
RESIGNATION OF EXECUTOR OR ADMINISTRATOR.
PROCEEDINGS UPON DEATH, RESIGNATION OR SECTION 4. POWERS OF NEW EXECUTOR OR
REMOVAL ADMINISTRATOR. RENEWAL OF LICENSE TO SELL
REAL ESTATE
Grounds for removal of executor or administrator
(RSPAI) Power of the new executor or administrator
1. Neglect to p erform an order or judgment of the court or 1. Collect and settle the estate not administered;
a duty expressly provided by these rules; 2. Prosecute or defend actions commenced by or against
2. A bsconding; or the former executor or administrator; and
3. I nsanity or incapability or unsuitability to discharge the 3. Have execution on judgments recovered in the name of
trust; former executor or administrator.
4. Neglect to r ender accounts (within 1 year and when
required by the court); Authority to sell previously given to the former executor or
5. Neglect to s ettle estate according to these rules. administrator may be renewed without notice or hearing.
Other Valid Grounds for Removal of an Administrator:

1. Adverse interest of an administrator to that of the estate RULE 83
(Garcia v. Vasquez, G.R. No. L-26884, April 30, 1970). I NVENTORY AND APPRAISAL
2. Physical inability and consequent unsuitability to PROVISION FOR SUPPORT OF
manage the estate (De Borja v. Tan, G.R. No. L-6476,
November 18,, 1955).
F AMILY
3. False representation by an administrator in securing his
appointment (Cobarrubias v. Dizon, G.R. No. L-225, SECTION 1. INVENTORY AND APPRAISAL TO BE
February 26, 1946). RETURNED WITHIN THREE MONTHS
Inventory and appraisal must be made within 3 months
The order of removal is appealable (Borromeo v. from the grant of letters testamentary or of administration.
Borromeo, G.R. No. L-6363, September 15, 1955).
The three-month period is not mandatory. The fact that an
Note: Grounds are not exclusive. inventory was filed after the three-month period would not

deprive the probate court of jurisdiction to approve it. during distribution (Wagner v. Moore, G.R. No. L-25842,
However, an administrator’s unexplained delay in filing the March 18, 1927).
inventory may be a ground for his removal (Sebial v.
Sebial, G.R. No. L-23419, June 27, 1975). RULE 84
Approval of an inventory is not a conclusive determination GENERAL POWERS AND DUTIES OF
of what assets constituted the decedent’s estate and of EXECUTORS AND ADMINISTRATORS
the valuation thereof. Such determination is only
provisional and a prima facie finding of the issue of
ownership. SECTION 1. EXECUTOR OR ADMINISTRATOR TO
HAVE ACCESS TO PARTNERSHIP BOOKS AND
Property claimed by third persons may be included in the PROPERTY. HOW RIGHT ENFORCED
inventory as part of the assets of the estate and the
probate court may order such inclusion, but such order of SECTION 2. EXECUTOR OR ADMINISTRATOR TO
the probate court is only a prima facie determination and KEEP BUILDINGS IN REPAIR
does not preclude the claimants from maintaining an
ordinary civil action for the determination of title (Gonzales SECTION 3. EXECUTOR OR ADMINISTRATOR TO
v. CFI Manila, G.R. No. L-34395, May 19, 1981). RETAIN WHOLE ESTATE TO PAY DEBTS AND TO
ADMINISTER ESTATE NOT WILLED
SECTION 2. CERTAIN ARTICLES NOT TO BE
INVENTORIED Powers of the executor or administrator of the estate
1. Wearing apparel of the surviving spouse and minor (BERIP)
children; 1. To have access to, and examine and take copies of
2. Marriage bed and bedding; b ooks and papers relating to the partnership in case of
3. Provisions and other articles as will necessarily be a deceased partner;
consumed in the subsistence of the family of the 2. To e xamine and make invoices of the property
deceased. belonging to the partnership in case of a deceased
partner;
SECTION 3. ALLOWANCE TO WIDOW AND FAMILY 3. To maintain in tenantable r epair, houses and other
structures and fences and to deliver the same in such
Allowance repair to the heirs or devisees when directed so to do
Refers to the monetary advances which are subject to by the court;
collation and are likewise deductible from their share in 4. To make i mprovements on the properties under
the estate of the decedent. administration with the necessary court approval except
for necessary repairs (Herrera, p. 121);
Persons entitled to allowance during proceedings 5. To p ossess and manage the estate when necessary:
1. Legitimate surviving spouse (Nepomuceno v. Court of a. For the payment of debts; and
Appeals, G.R. No. L-62952, October 9, 1985); and b. For payment of expenses of administration.
2. Children of the decedent.
Some restrictions on the power of an administrator or
Note: According to Art. 188 of the Civil Code, the executor (cannot ABS-LCP)
children need not be minors or incapacitated to be entitled 1. Cannot a cquire by purchase, even at public or judicial
to allowance (Santero v. CFI of Cavite, G.R. No. 61700- auction, either in person or mediation of another, the
03, Sept. 24, 1987). property under administration Art. 1491, NCC);
2. Cannot b orrow money without authority of the court;
Grandchildren are not entitled to allowance under Rule 83 3. Cannot s peculate with fund under administration (Sec.
(Ruiz v. Court of Appeals, G.R. No. 118671, January 29, 2, Rule 85);
1996). 4. Cannot l ease the property for more than one year (Art.
1878, NCC);
When liabilities exceed the assets of the estate, his widow
and children are not entitled to support pending the A view is held, however, that the aforesaid provision of
liquidation of the intestate estate, on the ground that such Art. 1878 of the Civil Code on agency should not apply
support, having the character of an advance payment, is to leases entered into by an executor or administrator,
to be deducted from the respective share of each heir under the theory that they represent not only the estate

but also the parties interested therein, that they are

required to file a bond and that their acts are subject to SECTION 5. ACCOUNTABLE IF HE NEGLECTS OR
specific provisions of law and orders of the probate DELAYS TO RAISE OR PAY MONEY
court, which circumstances are not true with respect to
agents (Regalado, p. 65). When accountable:
5. Cannot c ontinue the business of the deceased unless 1. If an executor or administrator:
authorized by the court (Sec. 1, Rule 84); a. Neglects or unreasonably delays to raise money, by
6. Cannot p rofit by the increase or decrease in the value collecting the debts or selling the real or personal
of the property under administration (Sec. 2, Rule 85). estate of the deceased; or
b. Neglects to pay over the money he has in his hands;
Note: The right of an executor or administrator to the and
possession and management of the real and personal 2. The value of the estate is lessened; or
properties of the deceased is not absolute and can only 3. Unnecessary cost or interest accrues; or
be exercised so long as it is necessary for the payment of 4. The persons interested suffer loss.
the debts and expenses of the administration (Estate of
Hilario Ruiz v. Court of Appeals, G.R. No. 118671, SECTION 6. WHEN ALLOWED MONEY PAID AS
January 29, 1996). COSTS
SECTION 7. WHAT EXPENSES AND FEES ALLOWED

RULE 85 EXECUTOR OR ADMINISTRATOR. NOT TO CHARGE
ACCOUNTABILITY AND FOR SERVICES AS ATTORNEY. COMPENSATION
COMPENSATION OF EXECUTORS PROVIDED BY WILL CONTROLS UNLESS
RENOUNCED
AND ADMINISTRATORS
Expenses of Administration
SECTION 1. EXECUTOR OR ADMINISTRATOR Those necessary for the management of the property, for
CHARGEABLE WITH ALL ESTATE AND INCOME protecting it against destruction or deterioration, and
possibly for the production of fruits.
General Rule: The executor or administrator is
accountable for the whole estate of the deceased. Compensation if there is no provision in the will
1. PhP4.00 a day for the time actually and necessarily
Exception: He is not accountable for properties which employed; or
never came to his possession. 2. Commission.
3. A greater sum may be allowed if:
Exception to the Exception: When through a. The estate is large;
untruthfulness to the trust or his own fault or for lack of b. The settlement has been attended with great
necessary action, the executor or administrator failed to difficulty;
recover part of the estate which came to his knowledge. c. The settlement has required a high degree of
capacity of the executor or administrator.
SECTION 2. NOT TO PROFIT BY INCREASE OR LOSE
BY DECREASE IN VALUE Attorney’s fees: An administrator who is a lawyer may
Administrator or executor shall not profit by the increase of not recover attorney’s fees from the estate; his
the estate nor be liable for any decrease which the estate, compensation is fixed by the rule but such compensation
without his fault, might have sustained. is in the nature of executor’s or administrator’s
commissions, and never as attorney’s fees. A lawyer of an
SECTION 3. WHEN NOT ACCOUNTABLE FOR DEBTS administrator or executor may not charge the estate for
DUE ESTATE his fees, but rather, he must charge his client (the
The executor or administrator is not accountable if debt executor or the administrator).
remains uncollected without his fault.
Where the administrator is himself the counsel for the
SECTION 4. ACCOUNTABLE FOR INCOME FROM heirs, it is the latter who must pay therefor.
REALTY USED BY HIM
If executor or administrator uses or occupies real estate When a lawyer has rendered legal services to the
under administration, he must account for it. executor or administrator to assist him in the execution of

his trust, his attorney’s fees may be allowed as expenses

of administration. The estate, is, however, not directly RULE 86
liable for his fees, the liability for the payment resting
primarily on the executor or administrator. If the C LAIMS AGAINST ESTATE
administrator had paid the fees, he would be entitled to
reimbursement from the estate (Occena v. Marquez, G.R.
No. L-27396, September 30, 1974). SECTION 1. NOTICE TO CREDITORS TO BE ISSUED
BY COURT
Procedure for collection of attorney’s fees
1. Request the administrator to make payment and file an Money Claims
action against him in his personal capacity and not as Claims for money, debt or interest thereon upon a liability
administrator should he fail to pay; or contracted by the decedent before his death (Festin, p.
2. Petition in the testate or intestate proceeding asking the 75).
court, after notice to all persons interested, to allow his
claim and direct the administrator to pay it as an When may the court issue notices to creditors to file
expense of administration (Herrera, p.123). their claims? Immediately after granting letters
testamentary or of administration.
SECTION 8. WHEN EXECUTOR OR ADMINISTRATOR
TO RENDER ACCOUNT Claims arising after his death cannot be presented except
General Rule: Within one year from the time of receiving for:
letters testamentary or letters of administration. 1. Funeral expenses; and
2. Expenses of the last sickness of the decedent.
Exception: An extension of time is allowed by the court
for presenting claims against, or paying the debts of the Claims for taxes (inheritance and estate) due and
estate, or for disposing of the estate; and he shall render assessed after the death of the decedent need not be
such further accounts as the court may require until the presented in the form of a claim. The court in the exercise
estate is wholly settled. of its administrative control over the executor or
administrator may direct the latter to pay such taxes
The fact that the final accounts had been approved does (Pineda v. CFI of Tayabas, G.R. No. L-30921, February
not divest the court of jurisdiction to require supplemental 16, 1929).
accounting for, aside from the initial accounting, the Rules
provide that “he shall render such further accounts as the The heirs, even after distribution, are liable for inheritance
court may require until the estate is wholly settled.” and estate taxes (Government of the Philippine Islands v.
(Tumang v. Laguio, G.R. No. L-50277, February 14, Pamintuan, G.R. No. L-33139, October 11, 1930).
1980).
SECTION 2. TIME WITHIN WHICH CLAIMS SHALL BE
SECTION 9. EXAMINATIONS ON OATH WITH FILED
RESPECT TO ACCOUNT
Statute of Non-Claims
Examination may be dispensed with when: The period fixed by the rule for the filing of the claims
1. No objection is made to the allowance of the account; against the estate.
and
2. Its correctness is satisfactorily established by Reason for the rule: For the speedy settlement of the
competent proof. affairs of the deceased and the early delivery of the
property to the distributees, legatees or heirs.
The heirs, legatees, distributees and creditors have the
same privilege of being examined. Where to File Claims: All money claims must be
entertained by Settlement Court regardless of amount.
SECTION 10. ACCOUNT TO BE SETTLED ON NOTICE (Sec. 1) In other words, B.P. Blg. 129 is not applicable.
SECTION 11. SURETY ON BOND MAY BE PARTY TO When to file claims

ACCOUNTING General Rule: Within the time fixed in the notice which
shall not be more than 12 months nor less than 6 months

after the date of the first publication. Otherwise, they are unlike that of a regular administrator, is not conditioned
barred forever. upon the payment of such debts (Regalado, p. 74).
Even if the testator acknowledged the debt in his will and SECTION 5. CLAIMS WHICH MUST BE FILED UNDER
instructed the executor to pay the debt, the statute of non- NOTICE. IF NOT FILED, BARRED; EXCEPTIONS.
claims must still be complied with; otherwise the claim Claims referred to under this section refer to claims for the
may also be barred. recovery of money and which are not secured by a lien
against the property of the estate (Olave v. Canlas, G.R.
Exception: Belated claims No. L-12709, February 28, 1962).
Belated Claims If the claim is secured; apply Sec. 7 of this Rule.

Claims not filed within the original period fixed by the
court. On application of a creditor who has failed to file his Claims which should be filed under the Statute of
claim within the time previously limited, at any time before Non-claims
an order of distribution is entered, the court may, for 1. Money claims, debts incurred by deceased during his
cause shown and on such terms as are equitable, allow lifetime arising from contract:
such claim to be filed within a time not exceeding 1 month a. Express or implied;
from the order allowing belated claims. b. Due or not due;
c. Absolute or contingent.
Note: The statute of non-claims supersedes the statute of 2. Claims for funeral expenses;
limitations insofar as the debts of deceased persons are 3. For the last illness of the decedent;
concerned because if a creditor fails to file his claim within 4. Judgment for money against decedent.
the time fixed by the court in the notice, then the claim is
barred forever. However, both statute of non-claims and Note: The enumeration is exclusive (Festin, p. 75).
statute of limitations must concur in order for a creditor to
collect; thus, a creditor cannot claim, even if within the A money claim arising from a crime of quasi-delict
statute of non-claims, if his claim has already prescribed committed by the decedent is not included in the concept
under the statute of limitations. of claims which have to be filed under this Rule but should
be the subject of an action against the executor or
However, a creditor barred by the Statute of Non-claims administrator (Sec. 1, Rule 87) or against the heirs
may file a claim as a counterclaim in any suit that the (Belamala v. Polinar, G.R. No. L- 24098, November 18,
executor or administrator may bring against such creditor 1967).
(Sec 5).
Unpaid taxes are not covered by the statute of non- claims
Good excuse for late filing as these are monetary obligations created by law (Vera, et
The pendency of the action before the regular courts was al. v. Fernandez, et al., G.R. No. L- 31364, March 30,
cited as a good excuse for the tardiness of the claim 1979).
(Echaus v. Blanco, G.R. No. L-30453, December 4, 1989).
Absolute Claim
SECTION 3. PUBLICATION OF NOTICE TO Such a claim as, if contested between living persons,
CREDITORS. would be proper subject of immediate legal action and
Publication of the notice for 3 successive weeks in a would supply a basis of a judgment for a sum certain.
newspaper of general circulation in the province and post
the same in 4 public places in the province and in 2 public Contingent Claim
places in the municipality where the decedent last resided. A conditional claim or claim that is subject to the
happening of a future uncertain event.
SECTION 4. FILING COPY OF PRINTED NOTICE.
10 days after publication and posting. It has reference to the uncertainty of liability, and not to
uncertainty of collection (Gaskell v. Tan Sit, G.R. No.
Note: A notice to creditors to file their claims is not proper 18405, September 23, 1922).
if only a special administrator has been appointed as a
special administrator is generally not empowered to pay Claims not yet due or contingent may be approved at their
the debts of the deceased (Sec. 2, Rule 80) and his bond, present value.

A deficiency judgment is a contingent claim and therefore, SECTION 7. MORTGAGE DEBT DUE FROM ESTATE
must be filed with the probate court where the settlement
of the deceased is pending, within the period fixed for the Creditor holding a claim secured by a mortgage or
filing of claims (First National City Bank of New York v. other collateral security
Cheng Tan, G.R. No. L-14234, February 28, 1962).
Alternative remedies: (AFR)
Claims Extinguished by 1. A bandon or waive the security and prosecute his claim
Actions which Survive
Death against the estate and share in the general distribution
of the assets of the estate;
Claim is not extinguished
2. F oreclose his mortgage or realize upon his security by
Personal to either of the by death but shall be action in court making the executor or administrator a
parties and is prosecuted as a money
extinguished by death claim against the estate party defendant and if there is judgment for deficiency,
of the deceased he may file a claim (contingent) against the estate
within the statute of non-claims;
ely solely on his mortgage and foreclose (judicially or
Examples: legal 3. R
extrajudicially) the same at anytime within the period
separation, annulment of Example: contractual
of the statute of limitations but he cannot be admitted as
marriage, declaration of money claim
creditor and shall not receive in the distribution of the
nullity of marriage
other assets of the estate.
Where the defendant dies while the action for a sum of Note: The mortgage creditor can avail of only one of the
money is pending against him in the Court of Appeals, he three remedies and if he fails to recover under that
shall be substituted therein by his legal representative but remedy he can not avail of any of the other two remedies
the final judgment of the appellate court shall not be (Bachrach Motor Co., Inc., v. Icarangal, G.R. No. L-45350,
enforceable by a writ of execution but should be filed in May 29,1939).
the probate court as a money claim in accordance with
Sec. 5 of Rule 86 (Paredes, et al. v. Moya, G.R. No. L- The rule reserves a right to the executor or administrator
38051, December 26, 1973). If none of the heirs is willing of an estate to redeem a mortgaged or pledged property
to be substituted defendant, the creditor has to procure of a decedent which the mortgage or pledgee has opted
the appointment of an executor/administrator (Sec. 16, to foreclose, instead of filing a money claim with the
Rule 3). probate court, under said Section 7 of Rule 86. While the
redemption is subject to the approval of the probate court,
If a final judgment had already been rendered against the the exercise of the right is discretionary upon the said
decedent prior to his death, but without levy on execution executor or administrator and may not be ordered by the
having been effected against his property, such judgment probate court upon its own motion (Manalansan v.
must also be filed as a claim against the estate in the Castaneda, G.R. No. L-43607, June 27, 1978).
manner provided for by this Rule. If levy has already been
made before his death, execution shall proceed (Sec. 7 SECTION 8. CLAIM OF EXECUTOR OR
[c], Rule 39). ADMINISTRATOR AGAINST AN ESTATE
This is one of the instances where a special administrator
SECTION 6. SOLIDARY OBLIGATION OF DECEDENT is appointed. The special administrator will have authority
Claim should be filed against decedent as if he were the to act only with respect to the claim of the regular
only debtor without prejudice on the part of the estate to administrator or the executor (Regalado, p. 83).
recover contribution from the other debtor.
SECTION 9. HOW TO FILE A CLAIM. CONTENTS
Joint obligation of decedent THEREOF. NOTICE TO EXECUTOR OR
The claim must be confined to the portion belonging to the ADMINISTRATOR
decedent.
How to file a claim:
1. Deliver the claim with the necessary vouchers to the
clerk of court;
2. Serve a copy thereof on the executor or administrator;

3. If the claim is due, it must be supported by an affidavit 3. Action to recover damages for any injury to person or
stating the amount due and the fact that there has been property, real or personal (tortuous acts).
no offsets;
4. If the claim is not due or contingent, it must be These are actions that survive the death of the decedent.
accompanied by an affidavit stating the particulars
thereof. An action for revival of money judgment may be filed
against the administrator to preempt prescription of
SECTION 10. ANSWER OF EXECUTOR OR judgment (Romualdez v. Tiglao, G.R. No. L-51151, July
ADMINISTRATOR. OFFSETS 24, 1981).
Executor shall file his answer to the claim within 15 days
after service of a copy of the claim.
Rule 87, Sec. 1 Rule 86, Sec. 5
The executor or administrator may interpose any Actions that may be
counterclaim in offset of a claim against the estate. Said commenced directly Actions that may be
counterclaim is regarded as a compulsory counterclaim as against the executor and commenced against the
the failure to file the same shall bar the claim forever. administrator estate of the deceased
Money claims, debts
SECTION 11. DISPOSITION OF ADMITTED CLAIM Recovery of real/ personal incurred by the deceased
The heir, legatee or devisee may oppose the claim property (or any interest during his lifetime arising
admitted by the executor or administrator. therein) from the estate; from contract;
SECTION 12. TRIAL OF CONTESTED CLAIM Enforcement of a lien Claims for funeral
The court may refer the claim to a commissioner. thereon; expenses or for the last
illness of the decedent;
SECTION 13. JUDGMENT APPEALABLE Action to recover damages
Judgment against the executor and administrator shall not arising from tort. Judgment for money
create any lien upon the property of the estate or does not against decedent.
constitute a specific lien which may be registered on such
property. SECTION 2. EXECUTOR OR ADMINISTRATOR MAY
BRING OR DEFEND ACTIONS WHICH SURVIVE
Judgment of a probate court approving or disapproving a
claim is appealable. SECTION 3. HEIR MAY NOT SUE UNTIL SHARE
ASSIGNED
Note: The mode of appeal is record on appeal and must Before distribution is made or before any residue is
be filed within 30 days from notice of judgment. known, the heirs and devisees have no cause of action
against the executor or administrator for recovery of the
SECTION 14. COSTS property left by the decedent.
RULE 87 General Rule: The heirs have no legal standing to sue for
ACTIONS BY AND AGAINST the recovery of property of the estate during the pendency
of administration proceedings.
EXECUTORS AND
ADMINISTRATORS Exceptions:
1. If the executor or administrator is unwilling or refuses to
bring suit;
SECTION 1. ACTIONS WHICH MAY AND WHICH MAY 2. When the administrator is alleged to have participated
NOT BE BROUGHT AGAINST EXECUTOR AND in the act complained of and he is made a party
ADMINISTRATOR defendant;
Actions which may be commenced directly against the 3. When there is no appointed administrator (see Rioferio,
executor or administrator: et al. v. Court of Appeals, G.R. No. 129008, January 13,
1. Recovery of real or personal property or any interest 2004).
therein from the estate;
2. Enforcement of a lien thereon;

SECTION 4. EXECUTOR OR ADMINISTRATOR MAY SECTION 9. PROPERTY FRAUDULENTLY CONVEYED

COMPOUND WITH DEBTOR BY DECEASED MAY BE RECOVERED. WHEN
With the approval of the court, an executor or EXECUTOR OR ADMINISTRATOR MUST BRING
administrator may compound with the debtor of the ACTION
deceased for a debt due, and may give a discharge of This provision applies when there is a deficiency of assets
such debt on receiving a just dividend of the estate of the in the hands of the executor or administrator for the
debtor. payment of the debts and expenses for administration.
SECTION 5. MORTGAGE DUE ESTATE MAY BE The executor or administrator may, on his own initiative or
FORECLOSED on option of the creditors and as directed by the court,
Note: There is no need for a special authority from the institute an action for the recovery of said property, but the
court for the administrator or executor to bring an action court may direct the creditors to defray part of the costs
for foreclosure on behalf of the estate (Calimbas v. and expenses of the suit since said action is for their own
Paguio, G.R. No. L-22197, December 2, 1924). benefit (Regalado, p. 93).
SECTION 6. PROCEEDINGS WHEN PROPERTY SECTION 10. WHEN CREDITOR MAY BRING ACTION.
CONCEALED, EMBEZZLED, OR FRAUDULENTLY LIEN FOR COSTS
CONVEYED
The court may cite any person suspected of having Requisites Before Action may be filed by Creditors:
concealed, embezzled, or conveyed away any of the (D-FAN LaBaN)
money, goods, or chattels of the deceased, or having in 1. There is a d eficiency of assets in the hands of an
his possession or knowledge any deed, contract, bond, or executor or administrator for the payment of debts and
other writing which contains evidence of or tends to expenses of administration;
disclose the right, title, interest, or claim of the deceased 2. The deceased in his lifetime had made or attempted to
to real or personal estate, or the last will and testament of make a f raudulent conveyance of his property or had so
the deceased, to appear before it and be examined under conveyed such property that by law the conveyance
oath; if such person refuses to appear, or to answer on would be void as against his creditors;
such examination or such interrogatories, the court may 3. The subject of the attempted conveyance would be
punish him for contempt, and may commit him to prison. liable to a ttachment in his lifetime;
4. The executor or administrator has shown n o desire to
The interrogatories put to any such person, and his file action or failed to institute the same within a
answers thereto, shall be in writing and filed with the reasonable time;
clerk’s office. 5. L eave is granted by the court to the creditor to file the
action;
Purpose: To elicit information or to secure evidence from 6. A b ond is filed by the creditor;
those persons suspected of having possession or 7. The action by the creditor is in the n ame of the executor
knowledge of property or will of the deceased, or of having or administrator.
concealed, embezzled or conveyed away any properties
of the deceased (Herrera, p. 171). Note: The last three requisites are unnecessary where the
grantee is the executor or administrator himself, in which
SECTION 7. PERSON ENTRUSTED WITH ESTATE event, the action should be in the name of all the creditors
COMPELLED TO RENDER ACCOUNT (Herrera, p. 175).
SECTION 8. EMBEZZLEMENT BEFORE LETTERS

ISSUED RULE 88
The responsible person shall be liable to an action in favor PAYMENT OF THE D EBTS OF THE
of the executor or administrator of the estate for double ESTATE
the value of the property sold, embezzled, or alienated, to
be recovered for the benefit of the estate.
SECTION 1. DEBTS PAID IN FULL IF ESTATE
SUFFICIENT
A writ of execution is not the proper procedure to satisfy
debts. The court must order the sale or mortgage of the
properties of decedent, the proceeds of which will satisfy

the debts and expenses (Aldamiz v. Judge of CFI of SECTION 5. HOW CONTINGENT CLAIM BECOMING
Mindoro, G.R. No. L-2360, December 29, 1949). ABSOLUTE IN TWO YEARS ALLOWED AND PAID
1. If such contingent claim becomes absolute and is
Is execution a proper remedy to satisfy an approved presented to the court as an absolute claim within two
claim? No, because: years from the time allowed for the presentation of
1. Payment approving a claim does not create a lien upon claims, it will be paid in the same manner as the other
a property of the estate; absolute claims.
2. Special procedure is for the court to order the sale to 2. If the contingent claim matures after the expiration of
satisfy the claim. the two years, the creditors may sue the distributees,
who are liable in proportion to the shares in the estate
General Rule: Payment of the debts of the estate must be respectively received by them (Jaucian v. Querol, G.R.
taken in the following order of preference: No. L-11307, October 5, 1918).
1. From the portion or property designated in the will,
2. From the personal property, and It has been ruled that the only instance wherein a creditor
3. From the real property. can file an action against a distributee of the debtor’s
assets is under Sec. 5, Rule 88. The contingent claims
Exception: The court, on petition of interested parties, must first have been established and allowed in the
may modify such order of disposition. probate court before the creditors can file an action
directly against the distributees (De Bautista v. De
SECTION 2. PART OF ESTATE FROM WHICH DEBT Guzman, G.R. No. L-28298, November 25, 1983).
PAID WHEN PROVISION MADE BY WILL
If the testator makes a provision in his will or designates SECTION 6. COURT TO FIX CONTRIBUTIVE SHARES
the estate to be appropriated for the payment of his debts WHERE DEVISEES, LEGATEES, OR HEIRS HAVE
that will be followed. BEEN IN POSSESSION
But if it is not sufficient, such part of the estate as is not SECTION 7. ORDER OF PAYMENT IF ESTATE
disposed of by will, if any, shall be appropriated for that INSOLVENT
purpose. If estate is insolvent, as in liabilities are more than the
assets, Sec.7 in relation to Art. 1059 and 2239 to 2251 of
SECTION 3. PERSONALTY FIRST CHARGEABLE FOR the Civil Code (Concurrence and Preference of Credits)
DEBTS, THEN REALTY must apply.
Two instances when realty is liable for debts and SECTION 8. DIVIDENDS TO BE PAID IN PROPORTION
expenses TO CLAIMS
1. When the personal estate of the decedent is not
sufficient for that purpose; SECTION 9. ESTATE OF INSOLVENT NONRESIDENT,
2. Where the sale of such personalty would be to the HOW DISPOSED OF
detriment of the participants of the estate. In case administration is taken in the Philippines of the
estate of a person who was at the time of his death an
SECTION 4. ESTATE TO BE RETAINED TO MEET inhabitant of another country, and who died insolvent, his
CONTINGENT CLAIMS estate in the Philippines shall be so disposed of that his
If the court is satisfied that the contingent claim duly filed creditors in and outside the Philippines may receive an
is valid, it may order the executor or administrator to retain equal share, in proportion to their respective credits.
in his hands a sufficient part of the estate to pay a portion
equal to the dividend of the creditors. SECTION 10. WHEN AND HOW CLAIM PROVED
OUTSIDE THE PHILIPPINES AGAINST INSOLVENT
Requisites (FAV): RESIDENT’S ESTATE PAID
1. Contingent claim is duly f iled; Claims proven outside the Philippines where the executor
2. The claim has become a bsolute; and had knowledge and opportunity to contest its allowance
3. Court is satisfied that the claim is v alid. therein may be added to the list of claims in the
Philippines against the estate of an insolvent resident and
the estate will be distributed equally among those
creditors.

Principle of reciprocity: The benefits of Sections 9 and

10 cannot be extended to the creditors in another country RULE 89
if the property of such deceased person there found is not SALES, MORTGAGES, AND OTHER
equally apportioned to the creditors residing in the ENCUMBRANCES OF PROPERTY OF
Philippines.
DECEDENT
SECTION 11. ORDER FOR PAYMENT OF DEBTS
SECTION 1. ORDER OF SALE OF PERSONALTY
SECTION 12. ORDERS RELATING TO PAYMENT OF The court may order the whole or part of the personal
DEBTS WHERE APPEAL IS TAKEN. estate to be sold if necessary:
The court may order the payment of the debts or may 1. To pay debts and expenses of administration;
order the distribution among the creditors whose claims 2. To pay legacies; or
are definitely allowed, leaving in the hands of the executor 3. To cover expenses for the preservation of the estate.
or administrator sufficient assets to pay the claim disputed
and appealed. SECTION 2. WHEN COURT MAY AUTHORIZE SALE,
MORTGAGE, OR OTHER ENCUMBRANCE OF
SECTION 13. WHEN SUBSEQUENT DISTRIBUTION REALTY TO PAY DEBTS AND LEGACIES THOUGH
OF ASSETS ORDERED PERSONALTY NOT EXHAUSTED
1. If personal estate is not sufficient to pay debts,
Conditions: expenses of administration and legacies; or
1. Whole of the debts are not paid; 2. If the sale of personal estate may injure the business or
2. Whole assets are not distributed; or other interests of those interested in the estate; and
3. Other assets afterwards come to the hands of the 3. If the testator has not made sufficient provision for
executor or administrator. payment of such debts, expenses and legacies;
4. If the deceased was in his lifetime under contract,
SECTION 14. CREDITORS TO BE PAID IN binding in law to deed real property to beneficiary
ACCORDANCE WITH TERMS OF ORDER (Section 8);
5. If the deceased during his lifetime held real property in
SECTION 15. TIME FOR PAYING DEBTS AND trust for another person (Section 9);
LEGACIES FIXED, OR EXTENDED AFTER NOTICE,
WITHIN WHAT PERIODS Requisites:
Shall not exceed 1 year in the first instance. 1. Application of executor/administrator;
2. Written notice to heirs, devisees and legatees; and
But court may extend period on application of executor or 3. Hearing.
administrator and after hearing and notice on the following
conditions: Note: Assets in the hands of executor/administrator will
1. The extension must not exceed 6 months for single not be reduced to prevent a creditor from receiving his full
extension; debt or diminish his dividends.
2. The whole period allowed to the original executor or
administrator shall not exceed 2 years. Notice is mandatory: Without notice and hearing, the
sale, mortgage or encumbrance is void.
Note: The provision is directory and extensions of the
period may be granted by the court taking into account the Ratio: The reason behind this requirement is that the
circumstances attending the distribution of the estate heirs are the presumptive owners. Since they succeed to
(Regalado, p. 96). all the rights and obligation of the deceased from the
moment of the latter’s death, they are the persons directly
SECTION 16. SUCCESSOR OF DEAD EXECUTOR OR affected by the sale or mortgage and therefore cannot be
ADMINISTRATOR MAY HAVE TIME EXTENDED ON deprived of the property, except in the manner provided
NOTICE WITHIN A CERTAIN PERIOD by law (Maneclang v. Baun, G.R. No. L-27876, April 22,
Successor of deceased executor or administrator may be 1992).
given an extension not to exceed 6 months.

SECTION 3. PERSONS INTERESTED MAY PREVENT exception is when the court so authorizes (Sec. 15, Rule
SUCH SALE, ETC., BY GIVING BOND 88).
If the opposition to the sale is based on the fact that the
oppositor claims title to the property to be sold, the court SECTION 8. WHEN COURT MAY AUTHORIZE
will hold in abeyance the authority to sell such property CONVEYANCE OF REALTY WHICH DECEASED
until the issue of ownership has been settled in an CONTRACTED TO CONVEY. NOTICE. EFFECT OF
ordinary action, since the probate court generally has no DEED
jurisdiction to resolve issues of ownership in the
administration proceedings (Pio Barreto Realty Dev., Inc. SECTION 9. WHEN COURT MAY AUTHORIZE
v. Court of Appeals, et al., G.R. Nos. 62431-33, August CONVEYANCE OF LANDS WHICH DECEASED HELD
31, 1984). IN TRUST
Conditions of bond: To pay the debts, expenses of Liquidation

administration and legacies within such time as the court The determination of all assets of the estate and payment
directs. of all debts and expenses
SECTION 4. WHEN COURT MAY AUTHORIZE SALE

OF ESTATE AS BENEFICIAL TO INTERESTED RULE 90
PERSONS. DISPOSAL OF PROCEEDS DISTRIBUTION AND PARTITION OF
The court may authorize the sale of whole or part of the THE ESTATE
estate if it appears beneficial to the heirs, devisees,
legatees, and other interested persons.
SECTION 1. WHEN ORDER FOR DISTRIBUTION OF
The proceeds shall be assigned to the persons entitled to RESIDUE MADE
the estate in the proper proportions. General Rule: An order of distribution shall be made after
payment of all debts, funeral expenses, expenses for
SECTION 5. WHEN COURT MAY AUTHORIZE SALE, administration, allowance of the widow and inheritance tax
MORTGAGE OR OTHER ENCUMBRANCE OF ESTATE is made.
TO PAY DEBTS AND LEGACIES IN OTHER
COUNTRIES Exception: If the distributees or any of them gives a bond
When it appears from records and proceedings of a conditioned for the payment of said obligation, the order of
probate court of another country that the estate of the distribution may be made even before payments of all
deceased in foreign country is not sufficient to pay debts debts, etc.
and expenses.
In these proceedings, the court shall:
SECTION 6. WHEN COURT MAY AUTHORIZE SALE, 1. Collate;
MORTGAGE OR OTHER ENCUMBRANCE OF REALTY 2. Determine heirs; and
ACQUIRED ON EXECUTION OR FORECLOSURE 3. Determine the share of each heir.
SECTION 7. REGULATIONS FOR GRANTING A separate action for the declaration of heirs is not
AUTHORITY TO SELL, MORTGAGE, OR OTHERWISE necessary.
ENCUMBER ESTATE
Application for authority to sell, mortgage or encumber Included in the jurisdiction of the probate court to make a
property of the estate may be denied by the court if: declaration of heirs is the power to entertain the question
1. The disposition is not for any of the reasons specified whether or not a person is acknowledged natural child of
by the rules; or decedent (Conde v. Abaya, G.R. No. 4275, March 23,
2. Under Section 3 Rule 89, any person interested in the 1909), the validity of disinheritance effected by the
estate gives a bond conditioned to pay the debts, testator (Hilado v. Ponce de Leon, G.R. No. 8020-R,
expenses of administration and legacies. October 22, 1953), and the status of a woman who claims
to be the lawful wife of the decedent (Torres v. Javier,
In case of sale, may there be payment in installment? G.R. No. L-10560, March 24, 1916). However, the
As a general rule no because one of the duties of an adoption decree cannot be assailed collaterally in
executor or administrator is to settle the debts of the settlement proceedings (Santos v. Aranzanso, G.R. No. L-
estate; thus, there is a need for immediate cash. The 26940, August 21, 1982).

Declaration of Heirs reason of circumstances beyond his control or through

The probate court has the power to entertain the question mistake or inadvertence not imputable to negligence.
whether or not a person is an acknowledged natural child Even then, the better practice to secure relief is reopening
of the decedent. Thus, an action for compulsory of the same case by proper motion within the
recognition of a natural child may be instituted and reglementary period (Del Rosario Vda. De Alberto v. Court
decided in the proceeding for the settlement of the estate of Appeals, G.R. No. L-29759, May 18, 1989).
of the ancestor. But an adoption decree cannot be
assailed in the settlement of the estate of the ancestor Writ of Execution
(Herrera, p.210). General Rule: Probate court cannot issue writs of
execution.
When is title vested? From the finality of the order of
distribution. Rationale: Its orders usually refer to the adjudication of
claims against the estate which the executor/administrator
Orders that determine who the heirs are and their may satisfy without the need of executory process
distributive shares are appealable. If not appealed within (Herrera, p. 222).
the reglementary period, they become final (Imperial v.
Munoz, G.R. No. L-30787, August 29, 1974). Exceptions: (CEE)
1. To satisfy the c ontributive share of the devisees,
Note: The probate court loses jurisdiction over the legatees and heirs when the latter had entered prior
settlement proceedings only upon payment of all debts possession over the estate (Sec. 6, Rule 88);
and expenses of the obligor and delivery of the entire 2. To enforce payment of the e xpenses of partition (Sec.
estate to all the heirs (Guilas v. Judge of CFI of 3, Rule 90);
Pampanga, G.R. No. L-26695, January 31, 1972) and/or 3. To satisfy the costs when a person is cited for
persons entitled thereto. e xamination in probate proceedings (Sec. 13, Rule
142).
Conditions precedent to be complied with for the
issuance of an order of distribution SECTION 2. QUESTIONS AS TO ADVANCEMENT TO
1. Showing that the executor, administrator or person BE DETERMINED
interested in the estate applied for it; and
2. The requirements as to notice and hearing upon such SECTION 3. BY WHOM EXPENSES OF PARTITION
application have been fulfilled. PAID
1. By the executor or administrator if he has sufficient
Prohibition against interference by other courts: In the effects in his hands and when equitable and not
interest of orderly procedure and to avoid confusing and inconsistent with the testator’s intention; otherwise,
conflicting dispositions of a decedent’s estate, a court 2. By the parties in proportion to their respective shares or
should not interfere with probate proceedings pending in a interest in the premises.
co-equal court (Herrera, p. 215).
Note: This is one of the instances where a writ of
Remedy of an heir who has not received his share: execution may be issued.
1. File a motion with the probate court for delivery to him
of his share; or SECTION 4. RECORDING THE ORDER OF PARTITION
2. If the estate proceedings have been closed, file a OF ESTATE
motion for reopening of the proceeding, within the
prescriptive period.
RULE 91
Note: The court acquires jurisdiction over all persons ESCHEATS
interested, through the publication of the notice prescribed
and any order that may be entered is binding against all of SECTION 1. WHEN AND BY WHOM PETITION FILED
them (Manalo v. Paredes, G.R. No. 24168, September 22,
1925). It was ruled that a final order of distribution of the Escheat
estate of a deceased person vests the title to the land of The proceeding whereby the real and personal property of
the estate in the distributes; and that the only instance a deceased person in the Philippines, who dies without
where a party interested in a probate proceeding may leaving any will (or if the will was not allowed, hence,
have a final liquidation set aside is when he is left out by

intestacy) and without any legal heirs, becomes the 3. The deceased left properties.
property of the State upon his death.
SECTION 2. ORDER FOR HEARING
Nature of escheat proceedings: Escheat is not an If the petition is sufficient in form and substance the court
ordinary civil action but a special proceeding that should shall:
be commenced not by complaint but by petition (Municipal 1. Make an order of hearing – hearing shall not be more
Council of San Pedro, Laguna v. Colegio de San Jose, than 6 months after entry of order;
G.R. No. L-45460, February 25, 1938). 2. Direct the publication of a copy of the order – at least
once a week for 6 consecutive weeks.
Three instances of escheats
1. When a person dies intestate leaving no heir but Remedy of respondent: When the petition does not state
leaving property in the Philippines (Section 1); facts which entitle the petitioner to the remedy prayed for,
2. Reversion Proceedings – Sale in violation of the the respondent may file a Motion to Dismiss the petition
Constitutional provision; (Herrera, p.227).
This shall be governed by Rule 91. However, the action SECTION 3. HEARING AND JUDGMENT
must be instituted in the province where the land lies in
whole or in part. Requisites:
1. Publication of the order;
Note: Reversion will not be allowed even if the original 2. Person died intestate;
buyer was an alien, if later on the title to the property 3. He is seized of real/personal property in the Philippines;
was transferred by succession to the buyer’s heirs who 4. He left no heir or person entitled to such property; and
are qualified parties, i.e. Philippine citizens (see 5. There is no sufficient cause to the contrary.
Republic v. Registry of Deeds of Roxas City, G.R. No.
158230, 16 July 2008). To whom the property escheated will be assigned:
3. Unclaimed Balances Act (dormant accounts for 10 1. If personal property – to the municipality or city where
years shall be escheated). he last resided;
2. If real property – to the municipality or city where the
Escheat under the Unclaimed Balances Acts must be property is situated;
filed in the RTC of the place where the dormant 3. If deceased never resided in the Philippines – to the
deposits are found. municipality or city where the property may be found.
What is the basis of the state’s right to receive The court, at the instance of an interested party, or on its
property in escheat? Order of succession under the Civil own motion, may order the establishment of a permanent
Code, the state is the last heir of the decedent. trust, so that only the income from the property shall be
used (Sec. 3, Rule 91).
Who is the real party in interest? In all actions for the
reversion to the Government of lands of the public domain The right to escheat may be waived expressly or impliedly
or improvements thereon, the Republic of the Philippines (Herrera, p.229).
is the real party in interest. The action shall be instituted
by the Solicitor General or the officer acting in his stead, in SECTION 4. WHEN AND BY WHOM CLAIM TO
behalf of the Republic of the Philippines (Luis B. Manese, ESTATE FILED
et. al. v. Sps. Velasco, et. al., G.R. No. 164024, January
29, 2009). Who may file a claim on the escheated property: Any
devisee, legatee, heir, widow/er, or other person entitled
Where to file: thereto.
Resident – RTC of last residence.
Non-Resident – RTC of the place where his estate is When to File: Within 5 years from date of judgment,
located. otherwise it will be barred forever.
Requisites for filing of petition: Rationale: To encourage would-be claimants to be

1. That a person died intestate; punctual in asserting their claims (Festin, p.103).
2. That he left no heirs or persons by law entitled to the
same; and

SECTION 5. OTHER ACTIONS FOR ESCHEATS Note: The court, in guardianship proceedings, is solely
concerned with the ward’s custody and proper
Period of filing claim: Within 5 years from the date of administration of his properties. Conflicts regarding
judgment. ownership or title in the hands of a guardian, in his
capacity as such should be litigated in a separate
Note: Under Art. 1014 of the Civil Code, the 5-year period proceeding (Festin, p.126).
is reckoned from the date the property was delivered to
the state and further provides that if the property had been In guardianship proceedings, the court cannot actually
sold, the municipality or city shall be accountable only for order the delivery of the ward’s property found to be
such part of the proceeds as may not have been lawfully embezzled, concealed or conveyed except when the title
spent. of the ward to the same is clear and indisputable. Absent
the exception, the recovery of such property must be
By whom: A person with interest. made in a separate proceeding (Cui v. Piccio, G.R. No. L-
5131, July 31, 1952).
Proceedings in escheat cannot be converted into
settlement of the estate. For the distribution of the estate Kinds of Guardians
of the decedent to be instituted, the proper petitions must A. According to scope:
be presented and the proceedings should comply with the 1. Guardian of the person – one who has been lawfully
requirements of the Rule. An escheat court does not have invested with the care of the person of the minor;
the power to order or proceed with the distribution of the 2. Guardian of the property – one appointed to have
estate of a decedent in escheat proceedings and the management of the estate of a minor or
adjudicate the properties to the oppositors (Municipality of incompetent;
Magalloon, Negros Occ. v. Ignatius Henry Bezore, G.R. 3. General guardian – one appointed to have the care
No. L- 14157, October 26, 1960). and custody of the person and of all the property of
the ward (Herrera, p. 237).
GENERAL GUARDIANS AND B. According to constitution:

GUARDIANSHIP 1. Legal guardian – without need of judicial
appointment;
Guardianship of minors is now governed by the Rule on 2. Guardian ad litem – appointed by courts of justice to
Guardianship of Minors (A.M. No. 03-02-05-SC) which prosecute or defend a minor, insane or person
took effect on May 1, 2003 while guardianship of declared to be incompetent, in an action in court.
incompetents who are not minors is still governed by the 3. Judicial gurdian – appointed in pursuance to law, as
provisions of the Rules of Court on Guardianship (Rule 92 guardian for insane persons, prodigals, minors, etc.
to Rule 97) (Sec. 27, A.M. No. 03-02-05-SC). (Herrera, p. 237).
Guardianship Courts with jurisdiction

The power of protective authority given by law and 1. Regional Trial Courts – B.P. Blg. 129 provides that
imposed in an individual who is free and in enjoyment of RTCs have jurisdiction over actions and special
his rights over one whose weakness on account of his age proceedings falling within the exclusive original
or other infirmity renders him unable to protect himself jurisdiction of the Juvenile and Domestic Relations
(Herrera, p. 235). Court (Herrera, p. 238). RTC has jurisdiction over
proceedings on guardianship of incompetents.
Basis: Parens patriae 2. Family Courts – R.A. No. 8369 otherwise known as
Family Courts Act of 1997 vested the Family Courts
Purpose: To safeguard the right and interests of minors with exclusive original jurisdiction on guardianship of
and incompetent persons. minors (Herrera, p. 238).
Guardian
A person in whom the law has entrusted the custody and
control of the person or estate or both of an infant, insane
or other person incapable of managing his own affairs
(Herrera, p. 235).

Procedure for Guardianship for Incompetent Persons 3. P rodigals;

who are not Minors Note: A prodigal is synonymous to a spendthrift or a
person who by excessive drinking, gaming, idleness or
Petition debauchery of any kind shall so spend, waste or lessen
for the Appointment of a his estate as to expose himself or his family to want or
Guardian suffering or expose the town to charge or expense for
the support of himself or his family (Cyclopedic Law
Dictionary, 811).
Court Order 4. D eaf and dumb who are unable to read and write;
fixing the hearing of the 5. Those of u nsound mind though they may have lucid
petition intervals;
6. Persons n ot of unsound mind but by reason of age,
disease, weak mind and other similar causes, cannot,
Notice without outside aid, take care of themselves and
of the hearing manage their property.
SECTION 3. TRANSFER OF VENUE

Hearing and Appointment
of the guardian
RULE 93
APPOINTMENT OF GUARDIANS
Service of Judgment
on the Local Civil
Registrar SECTION 1. WHO MAY PETITION FOR
APPOINTMENT OF GUARDIAN FOR RESIDENT
(AFOD)
Filing of Bond 1. A ny relative;
by the guardian 2. F riend; or
3. O ther person on behalf of the resident incompetent
who has no parents or lawful guardian; or
Issuance 4. The D irector of Health in favor of an insane person who
of “Letters of Guardianship” should be hospitalized or in favor of an isolated leper.
SECTION 2. CONTENTS OF PETITION

Termination 1. The jurisdictional facts;
of guardianship 2. The incompetency rendering the appointment
necessary or convenient;
3. The names, ages, and residences of the relatives of the
RULE 92 incompetent, and of the persons having him in their
VENUE care;
4. The probable value and character of his estate; and
5. The name of the person for whom letters of
SECTION 1. WHERE TO INSTITUTE PROCEEDINGS guardianship are prayed.
Jurisdiction: SECTION 3. COURT TO SET TIME FOR HEARING.

Resident – RTC of his residence NOTICE THEREOF
Non-Resident – RTC of the place where his property is
located. To whom notice served:
1. Persons mentioned in the petition residing in the
SECTION 2. MEANING OF THE WORD Philippines;
“INCOMPETENT” 2. The incompetent.
Incompetent includes: (CLeP DUN) There is no requirement for publication, only notice
1. Those suffering from penalty of c ivil interdiction; except in case of a nonresident incompetent.
2. Hospitalized le pers;

However, service of notice upon the persons mentioned in

the petition, including the incompetent who is not a minor, RULE 94
is mandatory and jurisdictional. BONDS OF GUARDIANS
If the person is insane, service of notice upon the Director

of the Hospital where he is hospitalized is sufficient. SECTION 1. BOND TO BE GIVEN BEFORE ISSUANCE
OF LETTERS. AMOUNT. CONDITIONS
SECTION 4. OPPOSITION TO PETITION Before an appointed guardian enters upon the execution
Must be in writing; need not be verified of his trust, he shall give a bond.
Grounds: Conditions: (IFAP)

1. Competency of alleged incompetent; 1. To make and return to the court, within 3 months, a true
2. Unsuitability of the person for whom letters are prayed. and complete i nventory of all the estate of his ward
which shall come to his possession or knowledge or to
If the interested person is a creditor and mortgagee of the the possession or knowledge of any other person for
estate of the minor, he cannot be appointed guardian of him;
the person and property of the latter. No man can serve 2. To f aithfully execute the duties of his trust, to manage
two masters (Garchitorena v. Sotelo, G.R. No. L-47867, and dispose of the estate according to these rules for
November 13, 1942). the best interests of the ward, and to provide for the
proper care, custody, and education of the ward;
SECTION 5. HEARING AND ORDER FOR LETTERS TO 3. To render a true and just a ccount of all the estate of the
ISSUE ward in his hands, and of all proceeds or interest
At the hearing: derived therefrom, and of the management and
1. The alleged incompetent must be present if able to disposition of the same, at the time designated by these
attend; rules and such other times as the court directs; and at
2. It must be shown that the required notice has been the expiration of his trust to settle his accounts with the
given. court and deliver and pay over all the estate, effects,
and moneys remaining in his hands, or due from him on
SECTION 6. WHEN AND HOW GUARDIAN FOR NON- such settlement, to the person lawfully entitled thereto;
RESIDENT APPOINTED, NOTICE 4. To p erform all orders of the court by him to be
Any relative, friend or anyone interested in the estate of a performed.
person liable to be put under guardianship may file a
petition for guardianship over the property of such person. Purpose of the bond: For the protection of the property
Notice shall be given through publication or otherwise. of the minor or incompetent to the end that he may be
assured of an honest administration of his funds (Herrera,
Ancillary guardianship p. 282).
Ancillary guardianship refers to the guardianship in a state
other than that in which guardianship is originally granted Necessity of the bond: When required by statutes to
(Herrera, p. 276). give a bond, no person can qualify and act as guardian
without complying with this condition precedent (Herrera,
SECTION 7. PARENTS AS GUARDIANS p. 282).
This provision may be deemed to have been modified by
the provisions of the Family Code on Guardianship Time when bond takes effect: At the time of
particularly Articles 225 and 220 (Herrera, p. 278). appointment notwithstanding the bond being filed later
(Herrera, p. 282).
SECTION 8. SERVICE OF JUDGMENT
Civil Registrar of the place where the minor or SECTION 2. WHEN NEW BOND MAY BE REQUIRED
incompetent resides or where the property is situated shall AND OLD SURETIES DISCHARGED
be served with a copy of the judgment. A new bond may be required when the guardian is about
to receive funds not in contemplation when the original
bond was executed and should be given as a condition of
the payment of a legacy or distributive share to the
guardian when there is any express statutory requirement
to that effect (Herrera, p.283).

Next of Kin
SECTION 3. BONDS TO BE FILED. ACTIONS Next of kin does not mean the next of kindred but pertains
THEREON to those relatives who are entitled to share in the estate of
In case of breach of the bond’s conditions, the bond may the ward under the Law on Intestate Succession including
be prosecuted in the same proceeding or in a separate those who inherit per stirpes or by right of representation
action, for the use and benefit of the ward or of any (Lopez v. Teodoro, Sr., G.R. No. L-3071, May 29, 1950).
person legally interested in the estate.
Note: Notice to next of kin and interested persons is
The bond of the guardian is a continuing one against the jurisdictional. Failure to notify the next of kin shall be a
obligors and their estates until all of its conditions are ground for dismissal of the petition under this Rule
fulfilled. The mere fact that defendant was removed as (Singco v. Longa, G.R. No. L-27962, February 14, 1928).
guardian did not relieve her or her bondsmen from liability However, notice is not necessary where the next of kin to
during the time she was duly acting as such guardian the ward and all persons interested in the estate are her
(Guerrero v. Teran, G.R. No. L-4898, March 19, 1909). mother and guardian, uncles and aunts who agreed to
make the transfer of their respective shares in the
property to the corporation to be organized (Pardo de
RULE 95 Tavera v. El Hogar Filipino, Inc. and Magdalena Estate,
SELLING AND ENCUMBERING G.R. No. L-5893, February 28, 1956).
PROPERTY OF WARD SECTION 3. HEARING ON RETURN OF ORDER.
COSTS
SECTION 1. PETITION OF GUARDIAN FOR LEAVE TO
SELL OR ENCUMBER ESTATE SECTION 4. CONTENTS OF ORDER FOR SALE OR
A. Grounds ENCUMBRANCE, AND HOW LONG EFFECTIVE
1. When the income of estate is insufficient to maintain The order of sale must specify the grounds.
the ward and his family or;
2. When it appears that it is for the benefit of the ward. General Rule: Sale must first be confirmed by the court,
B. Requirements and that until such confirmation, not even equitable title
1. Petition must be verified; passes (Herrera, p. 289).
2. Notice must be given to the next of kin; and
3. Hearing so that they may show cause why petition Exception: The court’s order expressly authorized the
should not be granted. guardian to execute and deliver to the purchaser definitely
named, a deed of conveyance to a parcel of land
Sale of the ward’s realty by the guardian without authority specifically described at a price already fixed and it was
from the court is void. Under the law, a parent acting intended to be the approval itself of the sale that was
merely as legal administrator of the property of his/her already perfected or agreed upon by the seller and the
children does not have the power to dispose of, or buyers, needing only a judicial go-ahead signal to reduce
alienate, the property of said minor without judicial the agreement to the statutory form and it had been made
approval (Lindain v. Court of Appeals, G.R. No. 95305, without departure from the terms of the order (Soriano, et.
August 20, 1992). al. v. Latono, G.R. No. L-3408, December 23, 1950).
For the sale or encumbrance of the property, a verified Duration of the order of sale and encumbrance of
petition is required (Sec 1 of this Rule), but no such property:
verification is required for that purpose with respect to the Within 1 year from the granting of the order. It is
estate of a decedent (Secs 1 and 4, Rule 89) and a mere presumed that if the property was not sold within 1 year,
motion therein will suffice. the ward has sufficient income.
SECTION 2. ORDER TO SHOW CAUSE THEREUPON The guardian, among others, cannot acquire by purchase
The court shall make an order directing the next of kin, even at a public or judicial auction, either in person or
and all persons interested in the estate, to show cause through the mediation of another, the property of the
why the petition under this Rule must not be granted. person or persons who may be under his guardianship
(Art. 1491, NCC).

The authority to sell or encumber shall not extend beyond property of the minor, duly approved by the court (Santo
1 year unless renewed by the court. Domingo v. Santo Domingo, G.R. No. L-10886, April 18,
1958).
Appeal is the proper remedy against an order of the court
authorizing the sale of the ward’s property (Lopez v. SECTION 4. ESTATE TO BE MANAGED FRUGALLY
Teodoro, G.R. No. L- 3071, May 29, 1950). AND PROCEEDS APPLIED TO MAINTENANCE OF
WARD
Note: There being a presumption that the sale of the The guardian is bound to exercise such diligence and
ward’s estate is valid, it cannot be attacked collaterally in prudence as reasonable men ordinarily employ in the
the registration proceedings. A separate action to avoid or conduct of their own affairs and will be held liable for any
rescind the sale on the grounds specified by law should loss which results from his failure to exercise such
be filed (Margate v. Rabacal, G.R. No. L-14302, April 30, prudence and diligence (Herrera, p. 301).
1963).
SECTION 5. GUARDIAN MAY BE AUTHORIZED TO
SECTION 5. COURT MAY ORDER INVESTMENT OF JOIN IN PARTITION PROCEEDINGS AFTER HEARING
PROCEEDS AND DIRECT MANAGEMENT OF ESTATE
Sections 1 & 2 of this Rule relate only to the investment of Requisites:
proceeds from the sale or encumbrance of the estate and 1. Hearing;
investment of other funds is covered by Section 5 of this 2. Notice to relatives of the ward; and
Rule. While Section 5 requires judicial authority in order 3. Careful investigation as to the necessity and propriety
that a guardian may invest the ward’s money, it does not of the proposed action.
provide that said authority must always be either prior to
or expressed (Philippine Trust Co. v. Ballesteros, G.R. No. SECTION 6. PROCEEDING WHEN PERSON
L-8532, October 11, 1957). SUSPECTED OF EMBEZZLING OR CONCEALING
PROPERTY OF WARD
RULE 96 Purpose: To secure evidence from persons suspected of
GENERAL POWERS AND DUTIES OF embezzling, concealing or conveying any property of the
GUARDIANS ward so as to enable the guardian to institute the
appropriate action to obtain the possession of and secure
title to said property (Cui v. Piccio, G.R. No. L-5131, July
SECTION 1. TO WHAT GUARDIANSHIP SHALL 31, 1952).
EXTEND
Conflicts regarding the ownership or title to the property in Only in extreme cases where property clearly belongs to
the hands of the guardian in his capacity as such should the ward or where his title thereto has been already
be litigated in a separate proceeding, the court in decided, may the court direct its delivery to the guardian
guardianship proceeding being solely concerned with the (Cui v. Piccio, supra).
ward’s care and custody and proper administration of his
properties (Viloria v. Administrator of Veteran Affairs, G.R. SECTION 7. INVENTORIES AND ACCOUNTS OF
No. L-9620, June 28, 1957). GUARDIANS, AND APPRAISEMENT OF ESTATE
SECTION 2. GUARDIAN TO PAY DEBTS OF WARD SECTION 8. WHEN GUARDIAN’S ACCOUNTS

PRESENTED FOR SETTLEMENT, EXPENSES AND
Order of liability of ward’s property: COMPENSATION ALLOWED
1. Personal estate and income of real estate; The guardian shall be allowed the amount of his
2. Real estate reasonable expenses incurred in the execution of his trust
and such compensation for his services, not exceeding
SECTION 3. GUARDIAN TO SETTLE ACCOUNTS, 15% of the net income of the ward.
COLLECT DEBTS AND APPEAR IN ACTIONS FOR
WARD General powers and duties of guardians (MSICAP)
Ordinarily, a guardian ad litem has no authority to act or 1. M anage the estate of the ward frugally, and apply the
bind a minor in any transaction with regard to his estate, proceeds to maintenance of the ward (Sec. 4);
but he can, however, do so with the approval of the court, 2. S ettle accounts, collect debts and appear in actions for
such as the amicable settlement of a case affecting the ward (Sec. 3);

3. Render a verified i nventory within 3 months after his SECTION 2. WHEN GUARDIAN REMOVED OR
appointment and annually thereafter, and upon ALLOWED TO RESIGN. NEW APPOINTMENT
application of interested persons (Sec. 7);
4. To have the c are and custody of the person of the Grounds for removal of a guardian
ward, and the management of his estate, or the 1. Insanity;
management of the estate only, as the case may be 2. Incapability or unsuitability to discharge functions;
(Sec. 1); 3. Wastage or mismanagement of the property of the
5. Render to court for its approval an a ccounting of the ward; and
property for 1 year from his appointment and every year 4. Failure to render an account or make a return within 30
thereafter, and upon application of interested persons days after it was due.
(Sec. 8); and
6. P ay the debts of the ward (Sec. 2). The remedy of a guardian from the order of removal is to
appeal (Olarte v. Enriquez, G.R. No. L-16098, October 31,
A guardian, just like a trustee, is prohibited under Article 1960).
736 of the Civil Code from making a donation of the
properties entrusted to him (Araneta v. Perez, G.R. No. L- The guardian may file a petition before the guardianship
18872, July 15, 1966). court for permission to resign is trust, stating the grounds
therefore, and accompanied by a report of the state of his
account and an offer to settle the account and deliver the
RULE 97 estate over the court (Herrera, p. 314).
TERMINATION OF GUARDIANSHIP
SECTION 3. OTHER TERMINATION OF
GUARDIANSHIP
SECTION 1. PETITION THAT COMPETENCY OF WARD Voluntary emancipation under the amendments
BE ADJUDGED, AND PROCEEDINGS THEREUPON introduced by R.A. No. 6809, is no longer recognized as a
ground for the termination of parental authority or
Who may file: guardianship (Herrera, p. 315).
1. Person who has been declared incompetent;
2. His guardian; SECTION 4. RECORD TO BE KEPT BY JUSTICE OF
3. Relative; or THE PEACE OR MUNICIPAL JUDGE
4. Friend.
SECTION 5. SERVICE OF JUDGMENT
Petition shall be verified by oath and shall state that such
person is then competent. Estate/Intestate Court Guardianship Court
Grounds for termination: Rules 73-90 Rules 92-97
1. Competency of the ward has been judicially determined;
2. Guardianship is no longer necessary; Statute of non-claims No statute of non-claims
3. Death of guardian; Can pass upon the merits Cannot pass upon the
4. Death of ward. of the claim merits of the claim
Sale of personal
Note: Notice of hearing of the petition is not intended as a Sale of personal or real
properties first
personal service process in the sense necessary to give properties first (Rule 95)
(Rule 89)
the court jurisdiction over the ward (In Re Guardianship of
Incompetent Jose de Inchausti v. Soler, G.R. No. L- Bond does not defeat the
Bond defeats the “petition
15119, January 19, 1920). “Petition for Authority to
for authority to Sell”
Sell”
Who may oppose:
Publication (Rule 89) Personal notice (Rule 95)
1. Guardian;
2. Relative of the ward; or
Indefinite effectivity of 1 year effectivity of
3. Any other person, in the discretion of the court.
“authority to sell” “authority to sell”
May appoint a special No such thing as a
administrator special guardian

Estate/Intestate Court Guardianship Court 4. R elationship of trust with the minor;

5. A vailability to exercise the powers and duties of a
guardian for the full period of the guardianship;
(Remedy: Appeal from 6. L ack of conflict of interest with the minor;
order appointing the 7. A bility to manage the property of the minor (Sec. 5).
guardian)
Who may be appointed guardian of the person or
property, or both, of a minor: In default of parents or a
RULE ON GUARDIANSHIP OF court-appointed guardian, the court may appoint a
MINORS guardian of a minor, observing as far as practicable, the
following order of preference:
(A.M. No. 03-02-05-SC, effective May 1, 2003) (G-BAO)
1. The surviving g randparent and in case several
grandparents survive, the court shall select any of them
SECTION 1. APPLICABILITY OF THE RULE taking into account all relevant considerations;
The Rule applies to petitions for Guardianship over the 2. The oldest b rother or sister of the minor over twenty-
person or property, or both of a minor. one years of age, unless unfit or disqualified;
3. The a ctual custodian of the minor over twenty-one
The father and the mother shall jointly exercise legal years of age, unless unfit or disqualified; and
guardianship over the person and property of their minor 4. Any o ther person, who in the sound discretion of the
without the necessity of a court appointment. In such court would serve the best interests of the minor (Sec.
case, this Rule shall be suppletory to the provisions of the 6).
Family Code on Guardianship.
Contents of petition
Who may petition 1. The jurisdictional facts;
1. Any relative; or 2. The name, age and residence of the prospective ward;
2. Other person on behalf of a minor; or 3. The ground rendering the appointment necessary or
3. The minor himself if 14 years of age or over; or convenient;
4. The Secretary of Social Welfare and Development; and 4. The death of the parents of the minor or the termination,
5. The Secretary of Health in case of an insane minor who deprivation or suspension of their parental authority;
needs to be hospitalized (Sec. 2). 5. The remarriage of the minor’s surviving parent;
6. The names, ages, and residences of relatives within the
Where to file petition: Family Court of the province or the 4th civil degree of minor, and of persons having him in
city where the minor actually resides. If he resides in a their care and custody;
foreign country, with the Family Court of the Province or 7. The probable value, character and location of the
city where his property or any part thereof is situated (Sec. property of the minor, and the name, age and residence
3). of the person for whom letters of guardianship are
prayed (Sec. 7).
The petition shall be verified and accompanied by a
certification of non-forum shopping (Sec.7). Time and notice of hearing: Notice must be given to
persons named in the petition and to the minor if over 14
Grounds of petition (D SuRe Best) years of age (Sec. 8).
1. D eath, continued absence, or incapacity of his parents;
2. Su spension, t ermination or d eprivation of parental Note: Notice to a minor who is above 14 year old is
authority; jurisdictional. Non-compliance with this renders the
3. Re marriage of his surviving parent, if the latter is found proceedings null and void.
unsuitable to exercise parental authority;
4. When the best interests of the minor so require (Sec. Case study report: The court shall order a social worker
4). to conduct a case study of the minor and all prospective
guardians and submit his report and recommendation (3
Considerations in appointing guardians (MP – FRALA) days before hearing) to the court for its guidance before
1. M oral character; the scheduled hearing (Sec. 9).
2. P hysical, mental and psychological condition;
3. F inancial status;

Opposition to petition: Must be in writing; need not be

verified (Sec. 10). Grounds for removal or resignation of guardian
Guardian:
Grounds for opposition: 1. Becomes insane or otherwise incapable of discharging
1. Majority of alleged minor; his trust;
2. Unsuitability of the person for whom letters are prayed. 2. Is found thereafter to be unsuitable;
3. Has wasted or mismanaged the property of the ward;
Contents of opposition to the petition 4. Has failed to render an account or make a return 30
1. Ground relied upon; days after it was due (Sec.24).
2. Prayer that the petition be denied; or
3. Prayer that letters of guardianship issue to himself or to Note: Before a motion for removal or resignation may be
any suitable person named in the opposition. granted under Sec. 24, the guardian must submit the
proper accounting of the property of the ward and the
Bond of guardian; amount and conditions: Before the court has to approve the same.
guardian enters upon the execution of his trust or letters
of guardianship he may be required to post a bond in the Grounds for termination of guardianship
amount set by the court under the following conditions: 1. The ward has come of age; or
1. To make and return to the court, within three months 2. Has died (Sec. 25).
after the issuance of his letters of guardianship, a true
and complete Inventory of all the property, real and Guardianship’s termination may be motu proprio or by a
personal, of his ward which shall come to his verified motion by any person allowed to file a petition for
possession or knowledge or to the possession or guardianship on the grounds of majority and/or death of
knowledge of any other person in his behalf; the ward (in case of death, notify the court within ten (10)
2. To faithfully execute the duties of his trust, to manage days).
and dispose of the property according to this rule for the
best interests of the ward, and to provide for his proper Incompetents Who Are
care, custody and education; Minor Not Minors
3. To render a true and just account of all the property of Who may file
the ward in his hands, and of all proceeds or interest 1. Any relative; or 1. Any relative;
derived therefrom, and of the management and 2. Other person 2. Friend; or
on
disposition of the same, at the time designated by this behalf of a minor; or 3. Other person on behalf of
rule and such other times as the court directs; and at 3. The minor himself if 14 the resident incompetent
the expiration of his trust, to settle his accounts with the years of age or over; or who has no parents or
court and deliver and pay over all the property, effects, 4. The Secretary of Social lawful guardian; or
and monies remaining in his hands, or due from him on Welfare and 4. The Director ofHealth in
such settlement, to the person lawfully entitled thereto; Development AND by favor of an insane person
and 5. The Secretary of Health who should be
4. To perform all orders of the court and such other duties in case of an insane hospitalized or in favor of
as may be required by law (Sec. 14). minor who needs to be an isolated leper (Sec. 1);
Bond of parents as guardian of the property of the hospitalized (Sec.2 AM 5. Anyone interested in the
minor: The parents shall post a bond if the market value 03-02-05-SC). estate of a non-resident
of the child’s properties or income exceeds PhP50,000 incompetent (Sec. 6).
and the bond shall not be less than 10% of the value of Contents of Petition
the properties or income (Sec. 16). 1. The jurisdictional facts; 1. The jurisdictional facts;
2. The name, age and 2. The incompetency
Petition to sell or encumber property residence of the rendering the
Grounds: prospective ward; appointment necessary
1. When the income of estate is insufficient to maintain 3. The ground rendering or convenient;
and educate ward when a minor; or the appointment 3. Thenames, ages, and
2. When it appears that it is for the benefit of the ward. necessary or residences of the
convenient; relatives of the
The authority to sell or encumber shall not extend beyond 4. The death of the incompetent, and of
one year, unless renewed by the court (Sec.19). parents of the minor or the persons having him

Incompetents Who Are accounts, they

Minor
Not Minors shall be filed only
the termination, in their care; at such times as
deprivation or 4. The probable value may be
suspension of their and character of his REQUIRED by
parental authority; estate; the court.
5. The remarriage of the 5. The name of the Court which has
minor’s surviving person for whom jurisdiction is
parent; letters of guardianship RTC or MTC if
6. The names, ages, and are prayed (Sec. 2 appointed to
residences of relative Rule 93). Court which has carry into effect
within the 4 th civil jurisdiction is provisions of a
Court that has
degree of minor, and of RTC (incom- will; if trustee
jurisdiction may
persons having him in petent) or Family dies, resigns or
be MTC or RTC.
their care and custody; Court removed in a
7. The probable value, (minors). contractual trust,
character and location RTC has
of the property of the jurisdiction in the
minor; and appointment of
8. The name, age new trustee.
and residence of the May sell,
person for whom letters encumber or
of guardianship are mortgage
prayed (Sec. 7, AM 03- May sell or
property if it is
02-05-SC). encumber
necessary for the
property of ward
Grounds for Termination purpose of if income of
1. Competency of the ward paying debts, estate is May sell or
has been judicially expenses of insufficient to encumber
1. The ward has come of
determined; administration or maintain ward property of estate
age; or
2. Guardianship is no legacies, or for and his family held in trust if
2. Has died (Sec. 25, AM
longer necessary; the preservation and educate necessary or
03-02-05-SC).
3. Death of guardian; of property or if ward or the sale expedient upon
4. Death of ward. sale will be or encumbrance order of the
beneficial to is for the benefit court.
heirs, legatees or
Note: The petition involving minors is required to be devisees (upon of ward upon
verified and accompanied by certification against forum application to the order of the
shopping while that involving incompetent must be court with written court.
verified only. However, no defect in the petition or notice to the
verification shall render void the issuance of letters of heirs). Order of sale is
guardianship. Order of sale has valid for only 1 Order of sale has
no time limit. year after grant no time limit.
RULE 98 of the same.
TRUSTEES Appointed to
carry into effect
Appointed by the
the provisions of
Executor/ court to settle Appointed as
Administrator Guardian Trustee estate of guardian. a will or written
Accounts are not decedent. instrument
Accounts must Accounts must
under oath and (contractual
be under oath be under oath
except for initial trust).
and final and filed and filed Not exempted Must always file May be
submission of annually. annually. from filing bond a bond. exempted from
even if such filing bond if

exemption is provided in the 2. Other written instruments where the trustee therein
provided in the will or if declines, resigns, dies, or is removed before
will (bond is only beneficiaries accomplishment of trust (Contractual Trust).
conditioned upon requested
payment of exemption. Note: This rule applies only to express trusts and not to
debts). implied trusts which arise by operation of law (Regalado,
Guardianship is p. 153).
Trusteeship is
terminated upon
Services of terminated upon SECTION 2. APPOINTMENT AND POWERS OF
attainment of age
executor or turning over the TRUSTEE UNDER WILL. EXECUTOR OF FORMER
of majority of the
administrator is property to TRUSTEE NEED NOT ADMINISTER TRUST
minor or upon
terminated upon beneficiary after No person succeeding to the trust as executor or
gaining
payment of debts expiration of trust administrator of a former trustee shall be required to
competency in
of the estate and (period may be accept such trust.
the case of an
distribution of provided for in
incompetent
property to heirs. the will or trust
(need court order Note: Notice to and consent of the beneficiary are not
contract). essential for the creation of the trust (De Leon v. Molo-
for the latter).
No obligation to Peckson, G.R. No. L-17809, December 29, 1962).
Must pay the Must pay the
pay debts of
debts of the debts of the The trustee to be appointed shall have the same rights,
beneficiary or
estate. ward. powers, and duties, and in whom the estate shall vest, as
trustor.
if he had been appointed by the testator.
Procedure for appointment of trustees under Rule 98
SECTION 3. APPOINTMENT AND POWERS OF NEW
TRUSTEE UNDER A WRITTEN INSTRUMENT
Allowance of the instrument
creating the trust (Probate of will) When a new trustee appointed: When a trustee under a
written instrument declines, resigns, dies or is removed
before the objects of the trust are accomplished and no
Petition by the executor/ administrator or adequate provision is made in such instrument supplying
the person appointed as trustee in the the vacancy.
instrument
SECTION 4. PROCEEDINGS WHERE TRUSTEE
APPOINTED ABROAD
Appointment of the trustee by the When land in the Philippines is held in trust for a resident
court by a trustee who derives his authority from abroad, such
trustee must petition the RTC where the land is situated,
otherwise, the trust will be vacant and a new trustee will
Notice to all interested persons
be appointed.
Filing of bond by the trustee When a trust is created abroad for property in the
Philippines, judicial approval is still needed though the
trustor is alive.
SECTION 1. WHERE TRUSTEE APPOINTED
Jurisdiction: The RTC or MTC in which the will was SECTION 5. TRUSTEE MUST FILE BOND
allowed, if it be a will allowed in the Philippines, otherwise Neglect of trustees to file a bond will be interpreted by the
by the RTC of the province in which the property, or some court as resignation or a decline to accept the trust.
portion thereof, affected by the trust, is situated.
However, he may be exempted from bond when
A trustee is necessary to carry into effect: requested by:
1. A will creating a trust but the testator omitted to appoint 1. Testator;
a trustee in the Philippines (Testamentary Trust); and 2. All persons beneficially interested in the trust.

Nonetheless, the court may cancel such exemption must ordinarily be some ground for discharge other than
anytime. the mere wish of the trustee to be relieved (Herrera, p.
459).
SECTION 6. CONDITIONS INCLUDED IN BOND (ASIM)
1. That he will render upon oath at least once a year until Note: The trustee is prohibited from acquiring the property
his trust is fulfilled a true a ccount of the property in his whether by purchase, even in a public or judicial action,
hands and of the management and disposition thereof, either in person or through the mediation of another. (Art.
and such other accounts as the court may order; 1491, NCC)
2. That at the expiration of his trust he will s ettle his
accounts in court and pay over and deliver all the estate SECTION 9. PROCEEDINGS FOR SALE OR
remaining in his hands, or due from him on such ENCUMBRANCE OF TRUST ESTATE
settlement, to the person or persons entitled thereto; The Rules on Sale and Encumbrance of Trust Estate shall
3. That the trustee will make and return to the court, at conform as nearly as may be to the provisions on Sale
such time as it may order, a true i nventory of all the and Encumbrance by Guardians.
estate belonging to him as trustee, which at the time of
the making of such inventory shall have come to his
possession or knowledge; ADOPTION
4. That he will m anage 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 Preliminary Considerations
provisions of the instrument or order under which he is Note: The provisions of the Rules of Court on Adoption
appointed. have been amended by the Domestic Adoption Act of
1998 and the Inter-country Adoption Act of 1995. Sec. 6 of
When the trustee is appointed as a successor to a prior Rule 99 was already amended by Administrative Circular
trustee, the court may dispense with the making and No. 03-04-04 while Sec. 7 of Rule 99 was amended by
return of an inventory if one has already been filed. Administrative Circular No. 02-1-19-SC.
SECTION 7. APPRAISAL. COMPENSATION OF Effective August 22, 2002, there is a new Rule on
TRUSTEE Adoption (Section 33, Administrative Matter No. 02-6-02-
The compensation of the trustee is that which is provided SC).
by the instrument creating the trust. Otherwise, it shall be
fixed by the court. Nature and concept of adoption: Adoption is a juridical
act, a proceeding in rem, which creates between two
SECTION 8. REMOVAL OR RESIGNATION OF persons a relationship similar to that which results from
TRUSTEE legitimate paternity and filiation (Herrera, p. 317).
Requisites: Only an adoption made in pursuance with the procedures

1. Petition filed by parties beneficially interested; laid down under A.M. No. 02-6-02-SC Rules on Domestic
2. Notice to trustee; and and Inter-Country Adoption is valid in this jurisdiction.
3. Hearing.
Adoption is not an adversarial proceeding. There is no
Who may petition: Parties beneficially interested. particular defendant since the proceeding involves the
status of a person it being an action in rem (Herrera, p.
Grounds: 324).
1. Removal appears essential in the interest of petitioners;
2. Insanity; Purpose of adoption: The promotion of the welfare of the
3. Incapability of discharging trust; child and the enhancement of his opportunities for a
4. Unsuitability. useful and happy life, and every intendment is sustained
to promote that objective (Daoang v, Court of Appeals,
A trustee is at liberty to tender his resignation and apply G.R. No. L-34568, March 28, 1988).
for his release on the sole ground of unwillingness to act
further in the trust. But the acceptance of the resignation Adoption is strictly personal between the adopter and the
of a trustee is not a matter of course; due regard must be adopted (Teotico v. Del Val, G.R. No. L-18753, March 26,
had for the interest of the parties to be affected and there 1956).

b. A.M. No. 02-6-02-SC Rule on Domestic and Inter-

Adoption is a privilege, not innate or fundamental, but Country Adoption Effective August 22, 2002; and
rather a right created by statute. It is a privilege which is c. Rule on Custody of Minors and Writ of Habeas
governed by the state’s determination of what is for the Corpus in Relation to Custody of Minors Effective
best welfare of the child (Lahum v. Sibulo, G.R. No. May 15, 2003.
143989, July 14, 2003).
Financial capacity: While petitioner claims that she has RULES ON DOMESTIC ADOPTION
the financial support and backing of her children and (Secs. 1-25, A.M. No. 02-6-02)
siblings, the ability to support the adoptees is personal to
the adopter, as adoption only creates a legal relation Procedure for Domestic Adoption under AM-02-6-02-
between the former and the latter (Landingin v. Republic SC
of the Philippines, G.R. No. 164948, 27 June 2006).
Petition for Domestic
Adoption
Note: When a foreigner who is married to Filipino citizen
seeks to adopt jointly with his/her spouse as relative within
the fourth civil degree of consanguinity or affinity of the Order of Hearing by the
Filipino spouse, the Domestic Adoption Act shall apply. court
Construction of adoption statutes: All the sections are

designed to protect the “best interests” of the adoptee Child and Home Study
(Herrera, p. 346). Reports by the Social
Worker
Adoption statutes, being humane and salutary, hold the
interest and welfare of the child to be of paramount
consideration and are designed to provide homes, Hearing on the Petition for
parental care and education for unfortunate, needy or Adoption
orphaned children and give them the protection of society
and family in the person of the adopter as well as to allow Supervised Trial Custody
childless couples or persons to experience the joys of
parenthood and give them legally a child in the person of
the adopted for the manifestation of their natural parental Adoption Decree issued
instincts. Every reasonable intendment should be by the court
sustained to promote and fulfill these noble and
compassionate objectives of the law (Malkinsons v.
Agrava, G.R. No. L-36309, November 26, 1973). Who may adopt (Sec.4)
A. Any Filipino Citizen –
Subsequent laws 1. Of legal age;
1. P.D. No. 603, otherwise known as Child and Youth 2. In possession of full civil capacity and legal rights;
Welfare Code, which expressly repealed all the Civil 3. Of good moral character;
Code provisions on Adoption, as amended by Executive 4. Has not been convicted of any crime involving moral
Order No. 91; turpitude;
2. R.A. No. 8043 on Inter Country Adoption; 5. Emotionally and psychologically capable of caring for
3. Family Code of the Philippines which repealed the children;
substantive provisions of P.D. No. 603 and E.O. No. 91; 6. At least 16 years older than the adoptee.
4. Family Courts Act of 1997 establising Family Courts Except: when the adopter is the adoptee’s biological
vested with exclusive and original jurisdiction over parent or the spouse of the adoptee’s parent; and
adoption cases; 7. In a position to support and care for his/her children in
5. R.A. No. 8552 otherwise known as Domestic Adoption keeping with the means of the family.
Act; and B. Any alien possessing the same qualifications as
6. Implementing rules promulgated by the Supreme Court: above, Provided:
a. A.M. No. 02-1-19-SC Re: Proposed Rule on 1. That his country has diplomatic relations with the
Commitment of Children Effective April 15, 2002; Philippines;

2. That he has been living in the Philippines for at least DSWD or any duly licensed child placement or child
3 continuous years prior to the filing of the application caring agency. The child must be surrendered in
for adoption; writing. Such written instrument must be notarized and
3. Maintains residence until the adoption decree is signed in the presence of an authorized representative
entered; of the department after counseling has been made to
4. Certified by his diplomatic or consular office or any encourage the parents to keep the child (Sec. 5, AM 02-
appropriate government agency to have legal 1-19-SC).
capacity to adopt by his country; and 2. Judicial/Involuntary: Follow the procedure in
5. That his government allows the adoptee to enter his Proposed Rule on Commitment of Children (AM 02-1-
country as his adopted child. 19-SC) under special laws.
The requirements on residency and certification of the Joint adoption of spouses

alien’s qualification to adopt in his country may be General rule: Husband and wife shall jointly adopt (Art.
waived for the following: 185, Family Code).
a. A former Filipino citizen who seeks to adopt a relative
within the 4th degree of consanguinity or affinity; or Exceptions:
b. One who seeks to adopt the legitimate child of his 1. If one spouse seeks to adopt the legitimate child of the
Filipino spouse; or other;
c. One who is married to a Filipino citizen and seeks to 2. If one spouse seeks to adopt his own illegitimate
adopt jointly with his spouse a relative within the 4th son/daughter, provided that the other spouse has
degree of consanguinity or affinity of the Filipino signified his consent thereto;
spouse. 3. If the spouses are legally separated from each other
C. The guardian with respect to the ward after the (Sec. 4, A.M. 02-6-02-SC).
termination of the guardianship and clearance of his
financial accountabilities. This is in consonance with the concept of joint parental
authority over the child which is the ideal situation. As the
Who may be adopted (Sec. 5) child to be adopted is elevated to the level if illegitimate
1. Any person below 18 years of age who has been child, it is but natural to require both the spouses to adopt
judicially declared available for adoption or voluntarily jointly (Republic v. Toledano, G.R. No. 9447, June 8,
committed to DSWD; 1994).
2. The legitimate child of one spouse, by the other spouse;
3. An illegitimate child, by a qualified adopter to raise the Venue (Sec.6)
status of the former to that of legitimacy; Family Court where the prospective adoptive parents
4. A person of legal age regardless of civil status, if, reside.
prior to the adoption, said person has been consistently
considered and treated by the adopters as their own Contents of the petition (Sec.7)
child since minority; A. If the adopter is a Filipino citizen, the petition shall
5. A child whose adoption has been previously rescinded; allege the following:
6. A child whose biological or adoptive parents have died, 1. The jurisdictional facts;
but no proceedings shall be initiated within 6 months 2. That the petitioner is of legal age, in possession of full
from the time of death of said parents; civil capacity and legal rights; is of good moral
7. A child not otherwise disqualified by law or these rules. character; has not been convicted of any crime
involving moral turpitude; is emotionally and
“A child legally available for adoption” psychologically capable of caring for children; is at
It refers to a child who has been voluntarily or involuntarily least 16 years older than the adoptee, unless the
committed to the DSWD or to a duly licensed and adopter is the biological parent of the adoptee or is
accredited child-placing or child caring agency, freed of the spouse of the adoptee’s parent; and is in a
the parental authority of his biological parents, or in case position to support and care for his children in
or rescission of adoption, his guardian or adopter/s (Sec. keeping with the means of the family and has
3). undergone pre-adoption services as required by
Section 4 of R.A. No. 8552.
Two ways to commit a child B. If the adopter is an alien, the petition shall allege the
1. Administrative/Voluntary: In this case, the parent or following:
guardian of the child voluntarily committed him to the 1. The jurisdictional facts;

2. Sub-paragraph A.2 above; 3. The probable value and character of the estate of the
3. That his country has diplomatic relations with the adoptee;
Republic of the Philippines; 4. The first name, surname or names by which the
4. That he has been certified by his diplomatic or adoptee is to be known and registered in the Civil
consular office or any appropriate government Registry.
agency to have the legal capacity to adopt in his
country and his government allows the adoptee to The petition shall be verified with a certificate of non-
enter his country as his adopted child and reside forum shopping and specifically state at the heading of the
there permanently as an adopted child; and initiatory pleading whether the petition contains an
5. That he has been living in the Philippines for at least application for a change of name, rectification of simulated
three (3) continuous years prior to the filing of the birth, voluntary or involuntary commitment of children, or
petition and he maintains such residence until the declaration of child as abandoned, dependent or
adoption decree is entered. neglected.
The requirements of certification of the alien’s Rectification of simulated birth

qualification to adopt in his country and of residency It shall allege that:
may be waived if the alien: 1. Petitioner is applying for rectification of a simulated
a. Is a former Filipino citizen who seeks to adopt a birth;
relative within the fourth degree of consanguinity or 2. The simulation of birth was made prior to the date of
affinity; or effectivity of R.A. No. 8552, and the application for
b. Seeks to adopt the legitimate child of his Filipino rectification of the birth registration and the petition for
spouse; or adoption were filed within five years from said date;
c. Is married to a Filipino citizen and seeks to adopt 3. The petitioner made the simulation of birth for the best
jointly with his spouse a relative within the fourth interests of the adoptee; and
degree of consanguinity or affinity of the Filipino 4. The adoptee has been consistently considered and
spouse. treated by petitioner as his own child (Sec.8).
C. If the adopter is the legal guardian of the adoptee:
The petition shall allege that guardianship had been Adoption of a foundling, an abandoned, dependent or
terminated and the guardian had cleared his financial neglected child
accountabilities. The petition shall allege:
D.If the adopter is married, the spouse shall be a co- 1. The facts showing that the child is a foundling,
petitioner for joint adoption except if: abandoned, dependent or neglected;
1. One spouse seeks to adopt the legitimate child of the 2. The names of the parents, if known, and their
other; or residence. If the child has no known or living parents,
2. One spouse seeks to adopt his own illegitimate child then the name and residence of the guardian, if any;
and the other spouse signified written consent 3. The name of the duly licensed child-placement agency
thereto; or or individual under whose care the child is in custody;
3. The spouses are legally separated from each other. and
E. If the adoptee is a foundling: 4. That the Department, child-placement or child-caring
The petition shall allege the entries which should agency is authorized to give its consent (Sec. 9).
appear in his birth certificate, such as name of child, Abandonment
date of birth, place of birth, if known; sex, name and In its ordinary sense, it means to forsake entirely, to
citizenship of adoptive mother and father, and the date renounce utterly (Herrera, p. 351).
and place of their marriage.
F. If the petition prays for a change of name: In reference to abandonment of a child by his parent, the
It shall also state the cause or reason for the change of act of abandonment imports “any conduct of the parent
name. which evinces a settled purpose to forego all parental
duties and relinquish all parental claims to the child.” It
All petitions shall allege: means “neglect or refusal to perform the natural and legal
1. The first name, surname or names, age and residence obligations of care and support, which parents owe their
of the adoptee as shown by his record of birth, children” (Cang v. Court of Appeals, G.R. No. 105308,
baptismal or foundling certificate and school records; September 25, 1998).
2. That the adoptee is not disqualified by law to be
adopted;

Change of name: The present Rule on Domestic enter his country as his own adopted child unless
Adoption allows the petition to include an application for exempted under Section 4(2);
change of name (Sec. 10).
E. Home study report on the adopters. If the adopter is an
The title or caption must contain; alien or residing abroad but qualified to adopt, the home
1. The registered name of the child; study report by a foreign adoption agency duly
2. Aliases or other names by which the child has been accredited by the Inter-Country Adoption Board; and
known; and
3. The full name by which the child is to be known. F. Decree of annulment, nullity or legal separation of the
adopter as well as that of the biological parents of the
Annexes to the petition adoptee, if any.
A. Birth, baptismal or foundling certificate, as the case may
be, and school records showing the name, age and Procedure
residence of the adoptee; A. Order of hearing
1. It must be published at least once a week for 3
B. Affidavit of consent of the following: successive weeks;
1. The adoptee, if 10 years of age or over; 2. At the discretion of the court, copies of the order of
2. The biological parents of the child, if known, or the hearing shall be furnished to the office of the Solicitor
legal guardian, or the child-placement agency, child- General. Through the provincial or city prosecutor,
caring agency, or the proper government the DSWD and the biological parents of the adoptee,
instrumentality which has legal custody of the child; if known;
3. The legitimate and adopted children of the adopter 3. If a change in the name of the adoptee is prayed for
and of the adoptee, if any, who are 10 years of age or in the petition, notice to the Solicitor General shall be
over; mandatory;
4. The illegitimate children of the adopter living with him 4. If the petition and attachments are sufficient in form
who are 10 years of age or over; and and substance, the court shall issue an order
5. The spouse, if any, of the adopter or adoptee (Sec.12).
(Sec.11).
Contents of order
Parental consent 1. Adoptee’s registered name in the birth certificate, and
Parental consent required by law in adoption refers to the names by which the adoptee has been known (to
parents who have not abandoned their child. be stated in the caption);
Accordingly, one whom such child was given by his 2. Petition’s purpose;
mother, who does not wish to be identified, is 3. Complete name which the adoptee will use if the
considered the guardian of the child and can give valid petition is granted;
consent to the child’s adoption, as said child is 4. Hearing’s date and place of hearing (within 6 months
considered as abandoned (Duncan v. CFI Rizal, G.R. from the date of the order’s issuance)
No. L-30576, February 10, 1976). 5. Directive to the social worker to prepare and submit
child and home study reports before the hearing, if
Nevertheless, the requirement of written consent can be such reports were not attached to the petition due to
dispensed with if the parent has abandoned the child or unavailability at the time of the filing; and
that such parent is insane or hopelessly intemperate, 6. Directive to the social worker to conduct counseling
provided that sufficient facts are alleged in the petition sessions with the biological parents and to submit a
in order to warrant exemption (Cang v. Court of report before the hearing (Sec. 12).
Appeals, supra).
The necessary jurisdictional requirements should be
C.Child study report on the adoptee and his biological indicated in the petition for adoption. Thus, the name of
parents; the person to be adopted is that appearing in the civil
registry and the court does not acquire jurisdiction if a
D. If the petitioner is an alien, certification by his diplomatic different name is carried in the notice of publication
or consular office or any appropriate government (Cruz v. Republic of the Philippines, G.R. No. L-20927,
agency that he has the legal capacity to adopt in his July 26, 1966).
country and that his government allows the adoptee to

Role of the Solicitor General: When the petition

includes a prayer for change of name, notice to the The trial custody shall be monitored by the social
Solicitor General is mandatory to protect the interests of worker who submitted and prepared the case studies.
the State. On other matters, the courts are given
discretion to decide whether such notice should be General rule: Alien adopter must complete the 6 months
given (Herrera, p. 347). Supervised Trial Custody.
B. Child & Home Study Reports – The social worker Exception: Same as exemptions from requirements of
verifies with the Civil Registry the real identity and the residency and certification:
name of adoptee and the fact that he is legally available 1. A former Filipino citizen who seeks to adopt a relative
for adoption. If the adoptee’s birth was not registered, within the 4 thdegree;
the social worker shall register the adoptee and secure 2. One who seeks to adopt the legitimate child of his
a certificate of foundling or late registration (Sec.13). Filipino spouse;
3. One who is married to a Filipino citizen and seeks to
The social worker may make recommendations to the adopt jointly with his spouse the latter’s relative within
court if he finds some grounds to deny the petition. the 4th degree.
The social worker shall establish: Temporary Parental Authority: It is provisionally vested
1. The child is legally available for adoption; in the adopting parents during the period of trial custody,
2. The documents in support thereof are valid and before the issuance of a decree of adoption, precisely
authentic; because the adopting parents are given actual custody of
3. The adopter has sincere intentions towards the the child during such trial period (Herrera, p. 356).
adoptee;
4. The adoption shall inure to the best interests of the However, where the trial custody had not begun or had
child. already been completed at the time of quasi-delict
committed by a child to be adopted, the adopting parents
In case of alien adopter, the home study report must cannot assume any liability therefor. The natural parents
show: should be joined as indispensable parties to the suit for
1. Adopter’s legal capacity to adopt; damages (Tamargo v. Court of Appeals, G.R. No. 8044,
2. His government allows the adoptee to enter his June 3, 1992).
country as his adopted child in the absence of the
certification required under Sec. 7(b), R.A. No. 8552. If the child to be adopted is below 7 years of age and is
placed with the prospective adopter through a DSWD pre-
C.Hearing – Hearing is to be held within 6 months from adoption placement authority, the court shall order that
the date of issuance of the order (Sec.14). the prospective adopter shall enjoy all the benefits to
which the biological parent is entitled from the date the
Except: In case of application for change of name adoptee is placed with him.
which hearing must not be within 4 months after last
publication nor within 30 days prior to election. The social worker shall submit to the court a report on the
result of the trial custody within 2 weeks after its
The petitioner and the adoptee must personally appear termination.
and the former must testify in court.
E. Decree of adoption – If the court is convinced from the
D.Supervised Trial Custody (STC) – Before issuance of trial custody report and the evidence presented, that the
decree of adoption the court shall give the adopter trial adoption shall redound to the best interest of the child,
custody of the adoptee for at least 6 months (Sec.15). an adoption decree shall be issued (Sec.16).
Ratio: In order for the parties to adjust psychologically The decree of adoption shall take effect as of the date
and emotionally with each other and to establish a of filing of the original petition.
bonding relationship.
Contents of the adoption decree
Note: Court may reduce or exempt parties from 1. The name by which the child is to be known;
Supervised Trial Custody, if it finds that the same shall
be for the best interest of the adoptee.

2. Order to the Clerk of Court to issue to the adopter a Effects of adoption

certificate of finality upon expiration of the 155-day 1. Adopter will exercise parental authority;
reglementary period within which to appeal; 2. All legal ties between biological parents and the
3. Order to the adopter to submit a certified true copy of adoptee shall be severed, except when biological
the decree of adoption and the certificate of finality to parent is spouse of adopter;
the Civil Registrar where the child was originally 3. Adoptee shall be considered legitimate child of adopter
registered within 30 days from receipt of the for all intents and purposes;
certificate of finality; 4. Adopters shall have reciprocal rights of succession
4. In case of change of name, the decree shall be without distinction from legitimate filiation.
submitted to the Civil Registrar where the court
issuing the same is situated; The decree of adoption shall have a retroactive effect from
5. Order the Civil Registrar: the time of the petition.
a. To annotate on the adoptee’s original birth
certificate the decree of adoption within 30 days “It is a settled rule that adoption statutes, being human
from receipt of certificate of finality; and salutary, should be liberally construed to carry out the
b. To issue new birth certificate which shall not bear beneficent purposes of adoption. x x x. Hence, since there
any notation that it is new or amended certificate is no law prohibiting an illegitimate child adopted by her
which shall allow: registry number, date of natural father, x x x, to use, as middle name her mother’s
registration, name of child, sex, date of birth, place surname, we find no reason why she should not be
of birth, name and citizenship of adoptive parents allowed to do so” (In Re: Adoption of Stephanie Nathy
and the date and place of their marriage, if Garcia, G.R. No. 148311, March 31, 2005).
applicable;
c. To seal the original birth certificate in the civil Who may rescind the adoption? The adopter cannot
registry records which can be opened only upon rescind the adoption, only the adoptee may rescind within
the order of the court which issued the decree of 5 years from reaching the age of majority or after recovery
adoption; from incompetency. Such a petition for rescission shall be
d. To submit to the court issuing the decree of filed in the Family Court where the adoptee resides. In
adoption proof of compliance with all the foregoing case of a minor, he shall be assisted by a social work from
within 30 days from date of receipt of the decree. DSWD or by the minor’s guardian, if he is over 18 years of
age but is incapacitated.
In case of change of name, the decree shall be
submitted to the Civil Registrar where the court The adopter may not rescind the adoption; however, he
issuing the same is situated. may disinherit the adopted child (Art. 919, Civil Code).
An amended birth certificate shall be issued. The Grounds for rescission (Sec. 19)
original birth certificate shall be stamped “cancelled” 1. Repeated physical and verbal maltreatment despite
and shall be sealed in the Civil Registry records. having undergone counseling;
2. Attempt on the adoptee’s life;
Book of adoptions: All matters relative to adoption and 3. Sexual assault or violence;
all incidents arising after the issuance of the decree shall 4. Abandonment or failure to comply with parental
be recorded in the book of adoption kept by the clerk of obligations.
court of the Family Court (Sec. 17).
Order to answer: The court shall order the adverse party
Confidentiality of proceedings and records to file an answer within 15 days from the receipt thereof
General Rule: After compliance with jurisdictional (Sec. 22).
requirements, all adoption hearings shall be confidential
and shall not be open to the public. All related records Judgment: If the court finds that the petition’s allegations
shall be kept strictly confidential (Sec. 18). are true, it shall order the rescission of adoption (Sec. 23).
Exception: For security reasons or for the best interest of The court shall order that:
the child, the Court may, upon meritorious grounds allow 1. The biological parents’ parental authority, or the
the release of the information with restrictions, if DSWD’s legal custody, shall be restored if the adoptee
necessary (Herrera, p. 348). is still a minor or incapacitated;

2. The reciprocal rights and obligations of the adopter and A child under the Inter-Country Adoption Act is defined as
the adoptee shall be extinguished; any person below fifteen (15) years of age.
3. The successional rights shall revert to its status prior to
adoption, as of the date of judgment of judicial The Board shall ensure that all possibilities for adoption of
rescission. Vested rights acquired prior to judicial the child under the Family Code have been exhausted
rescission shall be respected; and that inter-country adoption is in the best interest of the
4. The adoptee shall use the name stated in his original child (Section 7, R.A. No. 8043).
birth/foundling certificate;
5. The Civil Registrar where the adoption decree was Contents of petition
registered shall cancel the new birth certificate of the
adoptee and reinstate his original birth/foundling Petitioner must allege:
certificate. 1. His age and the age of the child to be adopted, showing
that he is at least twenty-seven (27) years of age and at
Service of judgment – A certified true copy of the least sixteen (16) years older than the child to be
judgment and a certificate of finality shall be served by the adopted at the time of application, unless the petitioner
petitioner upon the Civil Registrar within 30 days from is the parent by nature of the child to be adopted or the
receipt of the certificate of finality. The Civil Registrar shall spouse of such parent, in which case the age difference
enter the rescission decree in the register and submit does not apply;
proof of compliance to the court within 30 days from 2. If married, the name of the spouse who must be joined
receipt of the decree (Sec. 24). as co-petitioner except when the adoptee is a legitimate
child of his spouse;
3. That he has the capacity to act and assume all rights
I NTER-COUNTRY ADOPTION and responsibilities of parental authority under his
national laws, and has undergone the appropriate
counseling from an accredited counselor in his country;
Objectives 4. That he has not been convicted of a crime involving
1. To consider inter-country adoption as an alternative moral turpitude;
means of child care, if the child cannot be placed in a 5. That he is eligible to adopt under his national law;
foster/adoptive family or cannot be cared for in the 6. That he can provide the proper care and support and
Philippines; instill the necessary moral values and example to all his
2. To ensure that the child enjoys the same protection children, including the child to be adopted;
accorded to children in domestic adoption; 7. That he agrees to uphold the basic rights of the child,
3. To ensure that the placement does not result in as embodied under Philippine laws and the U.N.
improper financial gain for those involved (Sec. 27). Convention on the Rights of the Child, and to abide by
the rules and regulations issued to implement the
Where to file petition provisions of R.A. No. 8043;
1. A verified petition to adopt a Filipino child may be filed 8. That he comes from a country with which the
by a foreign national or Filipino citizen permanently Philippines has diplomatic relations and whose
residing abroad with the Family Court having jurisdiction government maintains a similarly authorized and
over the place where the child resides or may be found; accredited agency and that adoption of a Filipino child
2. It may be filed directly with the Inter-Country Adoption is allowed under his national laws; and
Board (Sec. 28). 9. That he possesses all the qualifications and none of the
disqualifications provided in this Rule, in R.A. No. 8043
Who may adopt: and in all other applicable Philippine laws (Sec. 30).
1. Any alien or Filipino citizen permanently residing abroad
who is at least twenty-seven (27) years of age; Annexes : The following must be in writing and officially
2. Other requirements are the same as with R.A. No. translated in English:
8552. 1. Birth certificate of petitioner;
2. Marriage contract, if married, and, if applicable, the
Who may be adopted: Only a child legally available for divorce decree, or judgment dissolving the marriage;
domestic adoption may be the subject of inter-country 3. Sworn statement of consent of petitioner’s biological
adoption (Sec.29). or adopted children above ten (10) years of age;

4. Physical, medical and psychological evaluation of Domestic Adoption Inter-Country Adoption

the petitioner certified by a duly licensed physician and strangers) with some Procedure governed by
psychologist; exceptions. Amended Implementing
5. Income tax returns or any authentic document Rules and Regulations on
showing the current financial capability of the petitioner; Procedure governed by Inter Country Adoption Act
6. Police clearance of petitioner issued within six (6) A.M. No. 02-06-02-SC. approved January 8, 2004.
months before the filing of the petitioner;
7. Character reference from the local church/minister, the Rescission of adoption is
petitioner’s employer and a member of the immediate no longer allowed under
community who have known the petitioner for at least R.A. No. 8552.
five (5) years; Definition of a Child
8. Full body postcard-size pictures of the petitioner and A person below 15 years of
“Child” is a person below
his immediate family taken at least six (6) months age unless sooner
18 years of age.
before the filing of the petition (Sec.31). emancipated by law.
Who may Adopt
Note: Items (5) to (7) are not applicable in a domestic a. Any Filipino citizen;
An alien or a Filipino citizen
adoption. b. Any alien possessing
permanently residing
Functions of the RTC: The Regional Trial Court, after the same qualifications
abroad may file an
finding the petition (in case of foreigners who file a petition for Filipino nationals;
application for inter-country
for adoption in the Philippines under the Domestic c. Guardian with respect to
adoption of a Filipino child.
Adoption Act of 1998 otherwise known as RA 8552) to be the ward
sufficient in form and substance and a proper case for Qualifications
inter-country adoption, shall immediately transmit the Filipino Citizen 1. At least 27 years of age
petition to the Board for appropriate action (Sec. 30 of 1. Legal age; and at least 16 years
Amended Implementing Rules And Regulations On Inter- 2. In possession of full civil older than the adoptee at
Country Adoption or R.A. No. 8043). capacity and legal rights; the time of the application
3. Good moral character; for adoption unless the
An adoption created under the law of a foreign country is 4. Has not been convicted adopter is the parent by
entitled to registration in the corresponding civil register of of any crime involving nature of the child to be
the Philippines. The effects of such adoption shall be moral turpitude; adopted or the spouse of
governed by the law of the Philippines (Marcaida v. 5. Emotionally and such parent;
Aglubat, G.R. No. L-24006, November 25, 1967). psychologically capable 2. If married, his/her spouse
of caring for children; must jointly file for the
“Best interest of the minor” standard and adoption;
“Best interest of the minor” standard refers to the totality of 6. At least 16 years older 3. Has the capacity to act
the circumstances and conditions as are most congenial than the adoptee and assume all rights and
to the survival, protection, and feelings of security of the (waived when the responsibilities of parental
minor encouraging to his physical, psychological and adopter is the biological authority under his
emotional development. It also means the least parent of the adoptee, or national laws, and has
detrimental available alternative for safeguarding the is the spouse of the undergone the
growth and development of the minor (Sec. 14 A.M. No. adoptee’s parent) appropriate counseling
03-04-04-SC 2003-04-22). from an accredited
Alien counselor in his/her
Domestic Adoption Inter-Country Adoption 1. Same as the country;
qualifications for Filipino 4. Has not been convicted of
Judicial Adoption Extrajudicial Adoption citizens; a crime involving moral
R.A. No. 8552 (Domestic R.A. No. 8043 (Inter- 2. His/her country has turpitude
Adoption Act) amended Country Adoption Act) diplomatic relations with 5. Eligible to adopt under
Arts. 183-193 of the Family governs the adoption of the Philippines; his/her national law;
Code and is the governing Filipinos by foreigners, and 3. He/she has been living 6. In a position to provide
law for Filipino citizens is implemented by the Inter- in the Philippines for at the proper care and
adopting other Filipinos Country Adoption Board. least 3 continuous years support and to give the
(whether relatives or prior to the filing of the necessary moral values

Domestic Adoption Inter-Country Adoption Domestic Adoption Inter-Country Adoption

application for adoption and example to all his Only after the termination
and maintains such children, including the of the guardianship and
residence until the child to be adopted; clearance of his/her
adoption decree is 7. Agrees to uphold the financial accountabilities
entered; basic rights of the child as Who may be adopted
4. He/she has been embodied under 1. Any person below 18
certified by his/her Philippine laws, the UN years of age who has
diplomatic or consular Convention on the Rights been administratively or
office or any appropriate of the Child, and to abide judicially declared
government agency that by the rules and available for adoption;
he/she has the legal regulations issued to 2. Legitimate son/daughter
capacity to adopt in implement the provisions of one spouse by the
his/her country; and of this Act; other spouse
5. His/her government 8. Comes from a country 3. Illegitimate child by a
allows the adoptee to with whom the Philippines qualified adopter to
enter his/her country as has diplomatic relations improve his/her status to
his/her adopted and whose government that of legitimacy;
son/daughter maintains a similarly 4. A person of legal age if,
authorized and accredited prior to the adoption, Only a legally free child may
Residency and certification agency and that adoption said person has been be the subject of inter-
of the alien’s qualification is allowed under his/her consistently considered country adoption.
to adopt may be waived on national laws; and treated by the
any of the following: 9. Possesses all the adopter(s) as his/her
1. A former Filipino citizen qualifications and none of own child since minority;
who seeks to adopt a the disqualifications 5. A child whose adoption
relative within the 4 thcivil provided herein and in has been previously
degree of consanguinity other applicable rescinded; or
or affinity; Philippine laws. 6. A child whose biological
2. One who seeks to adopt or adoptive parent(s)
the legitimate has died: Provided that
son/daughter of his/her no proceedings shall be
Filipino spouse; initiated within 6 months
3. If one spouse seeks to from the time of death of
adopt his/her own said parent(s).
illegitimate Where to file application
son/daughter: Provided, RTC (Family Court) having
however, that the other the jurisdiction over the
spouse has signified child, or with the Inter-
his/her consent thereto; Country Adoption Board,
or through an intermediate
4. If the spouse are legally Family Court of the place agency, whether
separated from each where the adopter resides governmental or an
other authorized and accredited
After filing: The petition agency, in the country of the
In case husband and wife shall not be set for hearing prospective adoptive
jointly adopt, or one without a case study report parents.
spouse adopts the by a licensed social
illegitimate son/daughter of worker. After filing: (a) if filed in the
the other, joint parental Family Court, it shall
authority shall be determine the sufficiency of
exercised by the spouses. petition in respect to form
and substance, if sufficient,
Guardian the petition is transmitted to

Domestic Adoption Inter-Country Adoption Domestic Adoption Inter-Country Adoption

Inter-Country Adoption written consent for the
Board; (b) if petition is filed adoption to be executed by
with Inter-Country Adoption the DSWD, and the
Board, it shall conduct the applicant then files a petition
matching of the applicant for adoption in his/her
with an adoptive child; (c) country.
after matchmaking, the child Decree of Adoption
is personally fetched by the Issued by the Family Court
applicant for the trial having jurisdiction over the Issued by a foreign court
custody which takes place case.
in the foreign country where Penalties
the adopter resides. Any government official,
What Petition for Adoption may include employee or functionary
1. Prayer for change of who shall be found guilty of
name; violating any of the
Same
2. Ratification of simulated provisions of this adoption
birth; laws shall automatically
3. Declaration that the child Only petition for adoption suffer suspension until the
is a foundling, resolution of the case
abandoned, dependent
or neglected child.
Annexes RESCISSION OF ADOPTION
Income tax returns, police Income tax returns, police
clearance, character clearance, character
reference, family picture, reference, family picture, Under the domestic adoption act of 1998, the adopter can
birth certificate of the birth certificate of the no longer rescind the adoption. He can merely disinherit
adopter are not required to adopter are required to be the adoptee in accordance with the provisions of the Civil
be annexed in the petition annexed in the petition Code (Art. 919, Civil Code).
Publication
Petition must be published Rescission relates only as to the date of the judgment.
at least once a week for 3 Hence, vested rights prior to rescission should be
successive weeks in a respected (Sec. 20, Art. VI, R.A. No. 8552).
newspaper of general No publication requirement
circulation in the province Applicability: The grounds for revocation of an adoption
or city where the court is refer only to an adoption validly decreed, not to an
situated adoption void from the beginning because tainted with
Supervised Trial Custody fraud (Ragudo v. Pasno, G.R. No. L-16642, April 18,
Supervised trial custody in 1962).
the country of adopter for
at least 6 months and is Who files:
mandatory before a decree 1. Adoptee
of adoption is issued a. Over 18 years of age; or
Supervised trial custody
(expenses are borne by the b. If still a minor with assistance of DSWD.
period in the Philippines for
adopter). 2. Guardian or counsel, if over 18 but incapacitated
at least 6 months (Court
(Sec.19).
may reduce period or
exempt parties from trial If unsuccessful, the Board
custody). shall look for another Grounds for rescission (PASA)
prospective applicant. 1. Repeated p hysical violence and verbal maltreatment by
Repatriation of the child is to the adopter despite having undergone counseling;
be resorted only as a last 2. A ttempt on the life of the adoptee;
resort; If successful, the 3. S exual assault or violence; or
Board shall transmit a 4. A bandonment or failure to comply with parental
obligations (Sec.19).

thus attacked that the necessary jurisdictional facts were

Venue: Family Court of the city or province where the proven (Herrera, p. 442).
adoptee resides (Sec.20).
Note: Unlike in revocation of guardianship, revocation of RULE 101

adoption is a separate proceeding from the adoption. A PROCEEDINGS
FOR
subsequent petition for revocation of adoption is neither a
continuation of nor an incident in the proceedings for
HOSPITALIZATION OF I NSANE
adoption but an entirely new proceeding. It would appear PERSONS
that this petition may be filed in a court other than the
court which issued the adoption (De la Cruz v. De la Cruz, Procedure for the Hospitalization of Insane Persons
L-19391, 29 September 1964).
Petition for commitment filed in RTC
Period within which to file verified petition (Sec.21):
Within 5 YEARS from reaching the age of majority or after
recovery from incompetency. Court order fixing the date and place for
hearing and ordering the Sheriff to produce
Adverse party shall file his answer within 15 days from the alleged insane person in the hearing
receipt of order of court requiring him to answer (Sec. 22).
The court does not have jurisdiction to annul after the

Service of Notice of the Court Order to
period fixed by the Rule, a decree of adoption. For
the alleged insane person and to the
reasons of public order, judicial litigations must have an
person who has custody of him/her
end; hence, decisions must not be changed after the
expiration of the period, it being beyond the jurisdiction or
control of courts (Dayrit v. Piccio, G.R. No. L-7858,
Hearing on the Petition
October 26, 1955).
Effects of Judgment of Rescission (PReVS-NC) Judgment granting/denying the Petition

1. P arental authority of biological parent or legal custody
of DSWD will be restored;
2. Re ciprocal rights of adoptee and adopter will be Application of the rule: The rule is applicable only when
extinguished; the hospitalization of the insane person is for the public
3. V ested rights acquired prior to judicial rescission shall welfare or for the welfare of said person, who in the
be respected; judgment of the Director of Health, is insane, provided that
4. S uccessional rights shall revert to its status prior to the one who has charge of him is opposed to such
adoption, as of the date of judgment of judicial confinement (Herrera. P. 462).
rescission;
5. Adoptee shall use the n ame stated in his original birth Hospitalization of the Guardianship
or foundling certificate; Insane (Rule 101) (Rules 92-97)
6. Civil registrar will reinstate his original birth or foundling For the protection of For the purpose of
c ertificate. protecting the community at protecting the person and
large and in the nature of the estate of the insane
Agreement between the adopter and adopted: A police regulations (Herrera, (Herrera, p. 463).
subsequent agreement between them nor between p. 463).
adopter and natural parents cannot by itself effectuate the
revocation of adoption (Herrera, p. 442). SECTION 1. VENUE. PETITION FOR COMMITMENT
Venue: RTC of province where the person alleged to be
Collateral attack on the validity of adoption: The insane is found.
settled rule is that a finding that the requisite jurisdictional
fact exists, whether erroneous or not, cannot be Who files: Director of Health with the assistance of city or
questioned in a collateral proceeding, for a presumption provincial prosecutor.
arises in such cases where the validity of the judgment is

Insanity (Mercader v. Wislizenus, G.R. No. L-11739, August 25,

A condition of the mind which is so impaired in function or 1916).
so deranged as to induce a deviation from normal conduct
on the person so afflicted. SECTION 4. DISCHARGE OF INSANE
Director of Health may file this petition in the RTC which
Requisites: ordered the commitment, when he is of the opinion that
1. Director of Health is of the opinion that the commitment the person is permanently or temporarily cured or may be
of the person alleged to be insane is for public welfare released without danger.
or for the welfare of said person;
2. Such person or the one having charge of him is The Health Secretary cannot order release without the
opposed to his being taken to a hospital or asylum. approval of the RTC. On the other hand, the RTC cannot
order release without recommendation from the Health
SECTION 2. ORDER FOR HEARING Secretary (Chin Ah Foo v. Concepcion, G.R. No. L-33281,
1. The court shall fix a date and place for hearing where March 31, 1930).
all concerned may appear to contest the petition;
2. Copies of the notice of hearing shall be served upon: SECTION 5. ASSISTANCE OF FISCAL IN THE
a. The person alleged to be insane; and PROCEEDING
b. The one having charge of him, or on such of his
relatives residing in the province/city as the judge
may deem proper.
RULE 102
3. The court shall order the sheriff to produce the alleged HABEAS CORPUS
insane person (if possible) on the date of hearing;
4. Upon satisfactory proof that the commitment is
necessary and that his relatives are unable to take Certiorari, Prohibition
proper custody and care of him, the court shall order his and Mandamus Habeas Corpus
commitment in a hospital/asylum; Special Civil Action (Rule
5. The court shall make proper provisions for the custody Special Proceeding
65)
of the ward’s property until a guardian is properly It reaches the record but
appointed. It reaches the body but not
not the body; concerned
the record; inquiry on the
with errors committed by a
Right of the insane person to notice and hearing: legality of the detention.
court.
Ordinarily, the person whose liberty is sought to be Direct attack. Collateral attack.
SECTION 3. HEARING AND JUDGMENT
Burden of proof: In all actions and proceedings, the Kinds of Writ of Habeas Corpus
burden of proving insanity is on the plaintiff who alleges it; 1. Preliminary citation – If the person is detained under
but where it is set up as an affirmative defense, the governmental authority and the illegality of his detention
burden of proving rests on the defendant. is not patent from the petition for the writ, the court
issues the citation to the government officer having
Estate of the insane person: Pending an appeal from custody to show cause why the writ of habeas corpus
the judgment declaring a person to be insane, the trial should not issue.
court has jurisdiction to order a third party to appear and 2. Peremptory writ – If the cause of the detention
show cause why the property of the insane should not be appears to be patently illegal. Noncompliance with this
delivered to the guardian. It is the duty of the court to is punishable.
protect the property of the insane pending the appeal

Procedure for the Issuance of the Writ of Habeas

Corpus under Rule 102 When availed of (As a consequence of a judicial
proceeding):
1. There has been a deprivation of a constitutional right
Petition alleging the illegal confinement or resulting in the restraint of a person;
detention. 2. The court had no jurisdiction to impose the sentence;
3. An excessive penalty has been imposed, as such
Issuance of the writ by the court having jurisdiction. sentence is void as to such excess;
4. Where the law is amended, as when the penalty is
lowered. Obtain freedom after serving minimum
Service of the writ by leaving the original with the sentence when the penalty under an old law has been
person to whom it is directed and preserving a reduced by an amendatory law (Cruz v. Director of
copy on which to make return of service. Prisons, G.R. No. L-6497, November 3, 1910);
5. Denial of right to a speedy trial (since it is jurisdictional);
6. Where the results of post-conviction DNA testing are
Hearing by the court. favorable to the convict.
7. Enable the parents to regain custody of a minor child,
even if the latter be in the custody of a third person of
Recommitment, bail or discharge of the detained her own free will (Salvaña v. Gaela, G.R. No. L-341155,
person. February 21, 1931);
8. In determining the constitutionality of a statute (People
Execution of the writ by delivering the body of the of the Philippines v. Vera, G.R. No. L-45685, November
person detained to the court and return of service. 16,1937);
9. When testing the legality of an alien‘s confinement and
proposed expulsion from the Philippines (Lao Tang Bun
SECTION 1. TO WHAT HABEAS CORPUS EXTENDS v. Fabre, G.R. No. L-1673, October 22, 1948);
1. Cases of illegal confinement or detention by which a 10.In permitting an alien to land in the Philippines (Lim
person is deprived of his liberty; and Cheng v. Insular Collector of Customs, G.R. No.
2. Cases by which the rightful custody of the person is 16406, September 13, 1920);
withheld from the person entitled thereto. 11.In determining the legality of an extradition (United
States v. Rauscher, 7 S. Ct. 234, 30 L. Ed. 425,
Note: Actual physical restraint is not required; any December 6, 1886).
restraint which will prejudice freedom of action is sufficient
(Moncupa v. Enrile, G.R. No. 63345, January 30, 1986). Nature of the petition: Petition for habeas corpus, which
is an inquisition by the government, at the suggestion and
Writ of Habeas Corpus instance of an individual, most probably, but still in the
A writ directed to the person detaining another and name and capacity of the sovereign is like a proceeding in
commanding him to produce the body of the prisoner at a rem. It is also instituted for the purpose of fixing the status
certain time and place, with the day and the cause of his of a person and that there can be no judgment entered
caption and detention, to do, submit to, and receive against anybody since there is no real plaintiff and
whatsoever the court or judge awarding the writ shall defendant (Alimpoos v. Court of Appeals, G.R. No. L-
consider in that behalf (Ilusorio v. Bildner, G.R. No. 27331, July 30, 1981).
139789, May 12, 2000). 1. It is not in the nature of a writ of error; nor intended as
substitute for the trial court’s function. The writ cannot
The function of the special proceeding of habeas corpus be used to investigate and consider questions of error
is to inquire into the legality of one’s detention. In all that might be raised relating to procedure or on the
petitions for habeas corpus, the court must inquire into merits.
every phase and aspect of petitioner’s detention – from 2. It cannot take the place of appeal, certiorari or writ of
the moment petitioner was taken into custody up to the error.
moment the court passes upon the merits of the petition 3. The inquiry in a habeas corpus proceeding is
and “only after such a scrutiny can the court satisfy itself addressed to the question of whether the proceedings
that the due process clause of our Constitution has been and the assailed order are, for any reason, null and
satisfied (Bernarte v. Court of Appeals, G.R. No. 107741. void.
October 18, 1996).

4. The writ is not ordinarily granted where the law provides In cases of illegal confinement or detention
for other remedies in the regular course, and in the General rule: The release, whether permanent or
absence of exceptional circumstances. temporary, of a detained person renders the petition for
5. Habeas corpus should not be granted in advance of habeas corpus moot and academic.
trial.
6. Habeas corpus is a summary remedy. Exception: When there are restraints attached to his
7. The writ of habeas corpus does not act upon the release which precludes freedom of action, in which case
prisoner who seeks relief, but upon the person who the court can still inquire into the nature of his involuntary
holds him in what is alleged to be the unlawful authority. restraint (Villavicencio v. Lukban, G.R. No. L-
Hence, the only parties before the court are the 14639, March 25, 1919).
petitioner (prisoner) and the person holding the
petitioner in custody, and the only question to be In Bagtas v. Hon. Ruth C. Santos, et al., (G.R. No.
resolved is whether the custodian has authority to 166682, November 27, 2009), the Court held that the
deprive the petitioner of his liberty. The writ may be mere production of child in the habeas corpus case does
denied if the petitioner fails to show facts that he is not warrant outright dismissal. A trial to determine who
entitled thereto ex merito justicias. had rightful custody over the child should be conducted by
8. A writ of habeas corpus, which is regarded as a the court.
“palladium of liberty” is a prerogative writ which does
not issue as a matter of right but in the sound discretion Voluntary Restraint
of the court. It is, however, a writ of right on proper General Rule: Writ not available if restraint is voluntary
formalities being made by proof. Resort to the writ is not (Kelly v. Director of Prisons, G.R. No. L-20478, March 14,
to inquire into the criminal act of which a complaint is 1923).
made but unto the right of liberty, notwithstanding the
act, and the immediate purpose to be served is relief Exception: Writ will lie to enable the parents (or person
from the illegal restraint. having substituted parental authority) to recover custody
of a minor child although she is in custody of a 3 rdperson
Purpose: The essential object and purpose of the writ of on her own volition (Tijing v. Court of Appeals, G.R. No.
habeas corpus is to inquire into all manner of involuntary 125901, March 8, 2001).
restraint as distinguished from voluntary, and to relieve a
person therefrom if such restraint is illegal (Moncupa v. Note: Voluntariness is viewed from the point of view of the
Enrile, G.R. No. 63345, January 30, 1986). person entitled to custody.
The ultimate purpose of the writ of habeas corpus is to When petition for habeas corpus not proper:
relieve a person from unlawful restraint (Castriciones v. 1. For asserting or vindicating denial of right to bail;
Chief of Staff of Armed forces of the Philippines, G.R. No. 2. For correcting errors in appreciation of
65731, September 28, 1989). facts/appreciation of law.
The writ of habeas corpus was devised and exists as a Whether the petition for the writ of habeas corpus
speedy and effectual remedy to relieve persons from may be properly filed together with the petition for
unlawful restraint, and as the best and only sufficient certiorari and mandamus: The writs of habeas corpus
defense of personal freedom. And any further rights of the and certiorari may be ancillary to each other where
parties are left untouched by decision on the writ, whose necessary to give effect to the supervisory powers of the
principal purpose is to set the individual at liberty higher courts.
(Villavicencio v. Lukban, G.R. No. L-14639, March 25,
1919). Hence, a writ of habeas corpus may be used with the writ
of certiorari for the purpose of review (Galvez v. Court of
Grounds for suspension of the privilege of the writ of Appeals, G.R. No. 114046, October 24, 1994).
habeas corpus under the Constitution
1. Invasion, when public safety requires it; SECTION 2. WHO MAY GRANT THE WRIT
2. Rebellion, when public safety requires it (Article VII, The RTC, CA, and SC have concurrent jurisdiction to
Section 18 of the 1987 Constitution) issue writs of habeas corpus. The MTC, by virtue of
special jurisdiction under B.P. Blg. 129, can issue the writ
in case there is no available RTC judge. Hierarchy of
courts is not observed.

SECTION 3. REQUISITES FOR APPLICATION

The writ issued by the RTC is enforceable within its THEREFOR
territorial jurisdiction. While the writ issued by CA or Sc is
enforceable anywhere in the Philippines. Who may apply:
1. Party for whose relief it is intended; or
The Sandiganbayan may issue writs of habeas corpus 2. Some person on his behalf.
only if it is in aid of its appellate jurisdiction.
Verified petition must set forth:
This provision is another exception to the rule that 1. That the person in whose behalf the application is made
processes of the Regional Trial Court are enforceable is imprisoned or restrained of his liberty;
throughout the Philippines (Regalado, p. 176). 2. The name of the person detaining another;
3. The place where he is imprisoned or restrained of his
Family Courts have exclusive jurisdiction to issue writs liberty;
of habeas corpus involving custody of minors. 4. The cause of his detention;
5. The verified petition must be signed.
The use of habeas corpus, not a petition for mandamus,
to test the legality of an alien’s detention and proposed Note: The formalities required for petitions for habeas
deportation from the Philippines is a settled practice corpus must be construed liberally. Strict compliance with
because aside from being thorough and complete, it the technical requirements for a habeas corpus petition
affords prompt relief from unlawful imprisonment may be dispensed with where the allegations in the
(Bisschop v. Galang, G.R. No. L-18365, May 31, 1963). application are sufficient to make out a case for habeas
corpus (Fletcher v. Director of Bureau of Corrections,
A petition for habeas corpus cannot be granted if the UDK-14071, July 17, 2009).
accused has only served the minimum of his sentence as
he must serve his sentence up to its maximum term The petition for the writ is required to be verified but the
(Office of the Court Administrator v. Judge Perello, A.M. defect in form will not be fatal. In fact, the Supreme Court
No. RTJ-05-1953, 24 December 2008). has held that it is the duty of a court to issue the writ if
there is evidence that a person is unjustly restrained of his
Scope of effectivity liberty within jurisdiction even if there is no application
Collegiate Court RTC (Villavicencio v. Lukban, supra).
Enforceable only within
Enforceable throughout the It is necessary, however, that the person in whose behalf
their respective judicial
Philippines. the petition is filed is under actual and effective restraint or
region.
deprivation of liberty (Gonzales v. Viola, G.R. No. L-
Returnable to any court. Returnable only to itself. 43195, August 23, 1935).
Jurisdiction in cases of habeas corpus with respect to SECTION 4. WHEN WRIT NOT ALLOWED OR
custody of minors: Although the Family Court where the DISCHARGED AUTHORIZED
petitioner resides or where the minor may be found has (JUCIT)
exclusive and original jurisdiction to hear petitions for 1. If j urisdiction appears after the writ is allowed;
habeas corpus with respect to custody of minors, the 2. If the person is in the custody of an officer u nder
Supreme Court and the Court of Appeals can take process issued by a court or by virtue of a judgment or
cognizance of such petition in order that it can be order of a court of record which has jurisdiction to issue
enforceable within the Philippines. the process, render the judgment or make the order;
3. If the person is c harged with or convicted of an offense
However, the return can be heard in the FC/RTC (if there in the Philippines;
is no FC in the judicial region) and there is no need to file 4. If the person is suffering i mprisonment under lawful
a separate petition for custody because the issue can be judgment.
ventilated in the petition for the writ. 5. T hree (3)-day detention of a suspect for three (3) days
without charge (Sec. 18, Ra No. 9372 “Human Security
Act of 2007” to take effect on July 14, 2007).
Supervening events may bar release: Even if the arrest

of a person is illegal, supervening events may bar release

or discharge from custody. What is to be inquired into is 3. The officer shall summon the person detaining
the legality of his detention as of, at the earliest, the filing another to appear before the court to show the cause
of the application for the writ of habeas corpus, for even if of the imprisonment or restraint.
the detention is at its inception illegal, it may, by reason of
some supervening events such as the instances SECTION 7. HOW PRISONER DESIGNATED AND
mentioned in Sec. 4, be no longer illegal at the time of the WRIT SERVED
filing of the application (Velasco v. Court of Appeals, G.R.
No. 118644, July 7, 1995). How service is made:
1. By leaving the original of the writ with the person to
Note: Posting of bail is not a waiver. Under the Revised whom it is directed or to any person having custody if
Rules on Criminal Procedure, as application for bail is not the former cannot be found or has not the person in his
necessarily a bar to challenge the validity of the arrest custody; and
(Sec. 26, Rule 114). 2. By preserving a copy on which to make return of
service.
SECTION 5. WHEN WRIT MUST BE GRANTED AND
ISSUED The writ itself plays the role of summons in ordinary
actions; court acquires jurisdiction over the person of the
Procedure for grant of writ: (VACS RH) respondent by mere service of writ.
1. V erified petition signed by the party for whose relief it is
intended; or by some other person in his behalf; SECTION 8. HOW WRIT EXECUTED AND RETURNED
2. A llowance of writ;
3. C ommand officer to produce; General rule: Officer to whom writ is directed shall
4. S ervice of writ by sheriff or other officer; convey the detained person on the day specified in the
5. R eturn; and writ:
6. H earing on return. 1. Before the judge who allowed the writ;
2. If he is absent, before any judge of the same court.
General Rule: If it appears that the writ should issue, the
clerk of court issues the writ under the court’s seal (Sec. Exception: If the person to be produced has sickness or
5, Rule 102). infirmity such that he cannot be brought before the court
without danger.
Exception: In emergency cases, the judge may issue the
writ under his own hand and deputize any person to serve Officer shall:
it. 1. Convey the person so imprisoned before the judge,
unless from sickness or infirmity, such person cannot,
The law even makes it the duty of the court to grant the without danger be brought before the court.
writ of habeas corpus, if there is evidence that a person is 2. Make the return of the writ together with the day and the
unjustly restrained within the court’s jurisdiction, though no cause of caption or restraint.
application for the writ was made (Villavicencio v. Lukban,
G.R. No. L-14639, March 25,1919). SECTION 9. DEFECT OF FORM
No writ can be disobeyed for defect of form if it
SECTION 6. TO WHOM WRIT DIRECTED, AND WHAT sufficiently states:
TO REQUIRE 1. The person in whose custody or under whose restraint
A. In case of imprisonment or restraint by an officer: the party imprisoned or restraint is held; and
1. The writ shall be directed to him; 2. The court or judge before whom he is to be brought.
2. The officer shall produce the body of the person
before the court. SECTION 10. CONTENTS OF RETURN
3. State the cause of detention and prove his authority. 1. Whether he has or has not the party in his custody
B. In case of imprisonment or restraint by a person not an or power, or under restraint;
officer: 2. If he has the party in his custody or power, or under
1. The writ shall be directed to an officer; restraint, the authority and the true and whole cause
2. The officer shall take and produce the body of the thereof, set forth at large, with a copy of the writ, order,
person before the court; 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 Information filed against the accused (Ilagan v. Enrile,
him, and is not produced, particularly the nature and G.R. No. 70748, October 21, 1985).
gravity of the sickness or infirmity of such party by
reason of which he cannot, without danger, be brought Once a person detained is duly charged in court, he may
before the court or judge; no longer question his detention through a petition for
4. If he has had the party in his custody or power, or under issuance of a writ of habeas corpus. Would be to quash
restraint, and has transferred such custody or the information and/or the warrant of arrest duly issued.
restraint to another, particularly to whom, at what time, The term “court” includes quasi-judicial bodies of
for what cause, and by what authority such transfer was governmental agencies authorized to order the person’s
made. confinement, like the Deportation Board of the Bureau of
Immigration (Go v. Ramos, G.R. No. 167569, 4
SECTION 11. RETURN TO BE SIGNED AND SWORN September 2009).
TO
If the offense is punishable by death, the person lawfully
SECTION 12. HEARING OF RETURN. detained shall not be released, discharged or bailed. If the
ADJOURNMENTS offense is not punishable by death, he MAY be
1. His remedy, upon the return of the writ, the court must recommitted to imprisonment of admitted to bail in the
immediately hear the case. discretion of the court or judge (Sec. 14, Rule 102).
2. The hearing MAY be adjourned by the court for good
causes, provided that conditions upon the safekeeping SECTION 15. WHEN PRISONER DISCHARGED IF NO
of the detained person is laid. APPEAL
3. If the detained person cannot be produced before the If one is unlawfully imprisoned, the court shall order his
court, the officer of person detaining must satisfy the discharge but it shall not be effective until a copy of the
court of the gravity of the alleged sickness or infirmity. order has been served on the officer or person detaining
4. During the hearing, the court shall disregard matters of the prisoner. If the person detaining him does not appeal,
form and technicalities of the authority or order of the prisoner shall be released.
commitment.
Period of appeal: Within 48 hours from notice of the
The failure of petitioners to file a reply to the return of the judgment or final order appealed from (Sec. 3, Rule 41).
writ warrants the dismissal of the petition because unless Form of appeal is by notice of appeal.
controverted, the allegations on the return are deemed to
be true or admitted (Florendo v. Javier, G.R. No. L-36101, The release contemplated under the writ of habeas corpus
June 29, 1979). is one which is free from any involuntary restraint. When
the person so released continues to be denied of one or
SECTION 13. WHEN THE RETURN EVIDENCE, AND more of his constitutional freedoms, where there is
WHEN ONLY A PLEA present denial of due process, or where the restraints are
If detention is by public authority, the return is not merely involuntary but appear to be unnecessary, the
considered prima facie evidence of the validity of the person concerned or those acting in his behalf may still
restraint and the petitioner has the burden of proof to avail themselves again of the privilege of the writ.
show that the restraint is illegal. As per Rule 131 on legal (Moncupa v. Enrile, G.R. No. 63345, January 30, 1986).
presumption that the duty of a public officer is regularly
performed. SECTION 16. PENALTY FOR REFUSING TO ISSUE
WRIT, OR FOR DISOBEYING THE SAME
If detention is by reason of private authority, the return is A penalty of PhP1,000 and may be punished for
considered only a plea of the facts asserted therein and contempt.
the person responsible for the detention has the burden of
proof to establish that the detention is legal and justified. Punishable acts or omissions
1. The Clerk of Court refuses to issue the writ after
SECTION 14. WHEN PERSON LAWFULLY allowance by the court and demand;
IMPRISONED RECOMMITTED, AND WHEN LET TO 2. The person directed in the writ:
BAIL a. Neglects or refuses to obey or make the return;
Habeas corpus would not lie after the Warrant of b. Makes a false return;
Commitment was issued by the court on the basis of the c. Refuses to deliver a true copy of the warrant/order of
commitment, within 6 hours after demand (Sec. 16).

3. Imprisoning a person set at liberty by the writ, for the

same offense (Sec. 17). The petition may however be filed with the regular court in
4. Removing a prisoner from one custody to another (Sec. the absence of the presiding judge of the Family Court,
18). provided however that the regular court shall refer the
case to the Family Court as soon as its presiding judge
SECTION 17. PERSON DISCHARGED NOT TO BE returns to duty.
AGAIN IMPRISONED
General Rule: A person who is set at liberty upon a writ of The petition may also be filed with the SC, CA, or with any
habeas corpus shall not be again imprisoned for the same of its members and, if so granted the writ shall be
offense. enforceable anywhere in the Philippines. The writ may be
made returnable to a Family Court or to any regular court
Exception: He is imprisoned by virtue of lawful order or within the region where the petitioner resides or where the
process of court having jurisdiction of the offense or minor may be found for hearing and decision on the
cause. merits.
Whether the State can reserve the power to re-arrest a Contents of verified petition (P-NOS)
person for an offense after a court of competent 1. The p ersonal circumstances of the petitioner and
jurisdiction has absolved him of the offense: respondent;
2. The n ame, age and present whereabouts of the minor
Ruling: Such a reservation is repugnant to the principle and his or her relationship to the petitioner and
that the government is one of laws and not of men. Under respondent;
this principle, the moment a person is acquitted of a 3. The material o perative facts constituting deprivation of
criminal charge he can no longer be detained or re- custody;
arrested for the same offense (Toyoto v. Ramos, G.R. No. 4. S uch other matters which are relevant to the custody of
L-69270 October 15, 1985). minor (Sec.4).
SECTION 18. WHEN PRISONER MAY BE REMOVED In Sombong v. Court of Appeals, et al. (G.R. No. 111876,
FROM ONE CUSTODY TO ANOTHER January 31, 1996), the Court laid down the following
1. By legal process; requisites in petitions for habeas corpus involving minors:
2. Prisoner is delivered to an inferior officer to carry to jail; 1. That the petitioner has the right of custody over the
3. By order of proper court or judge directing that he be minor;
removed from one place to another within the 2. That the rightful custody of the minor is being withheld
Philippines for trial; from the petitioner by the respondent; and
4. In case of fire, epidemic, insurrection or other necessity 3. That it is to the best interest of the minor concerned to
or public calamity. be in the custody of petitioner and not that of the
respondent.
SECTION 19. RECORD OF WRIT, FEES AND COSTS
Motion to dismiss is not allowed except on the ground of
lack of jurisdiction over the subject matter or the parties
RULE ON CUSTODY OF MINORS (Sec.6).
AND W RIT OF HABEAS CORPUS IN
Respondent must file a verified answer within 5 days from
RELATION TO THE CUSTODY OF the service of summons and copy of the petition (Sec.7).
MINORS
Pre-trial is mandatory (Sec.9).
(A.M. No. 03-04-04-SC)
Effects of failure to appear at the pre-trial
1. If the petitioner fails to appear personally at the pre-trial,
Who may file the petition: A verified petition for the
the case shall be dismissed, unless his counsel or a
rightful custody of a minor may be filed by any person
duly authorized representative appears in court and
claiming such right (Sec.2).
proves a valid excuse for the non-appearance of the
petitioner;
Where to file petition: Family Court of the province or
2. If the respondent has filed his answer but fails to appear
city where the petitioner resides or where the minor may
at the pre-trial, the petitioner shall be allowed to present
be found (Sec.3).

his evidence ex-parte. The court shall then render

judgment on the basis of the pleadings and the RULE ON W RIT OF A MPARO
evidence thus presented (Sec. 11).
(A.M. No. 07-9-12-SC, September 25, 2007)
Failure to file the pre-trial brief or to comply with its
required content shall have the same effect as failure to Writ of Amparo
appear at the pre-trial (Sec. 10). A remedy available to any person whose right to life,
liberty and security is violated or threatened with violation
Provisional order awarding custody: As far as by an unlawful act or omission of a public official or
practicable, the following order of preference shall be employee, or of a private individual or entity.
observed in the award of custody: (BEG BAO)
1. B oth parents jointly; It covers extralegal killings and enforced disappearances
2. E ither parent, taking into account all relevant or threats thereof (applicable in pending cases due to the
considerations, especially the choice of the minor over remedial nature of the writ).
seven years of age and of sufficient discernment unless
the parent chosen is unfit; Extralegal Killings
3. The g randparent or if there are several grandparents, Killings committed without due process of law (e.g.
the grandparent chosen by the minor over seven years salvage, summary and arbitrary executions).
of age and of sufficient discernment, unless the
grandparent chosen is unfit or disqualified; Enforced Disappearances
4. The eldest b rother or sister over twenty one (21) years Arrest, detention or abduction of a person by a
of age unless he or she is unfit or disqualified; government officer or organized groups or private
5. The a ctual custodian of the minor over twenty one (21) individuals acting with direct or indirect acquiescence of
years of age, unless the former is unfit or disqualified; the government; refusal of the state to disclose the fate or
or whereabouts of the person concerned or refusal to
6. Any o ther person or institution the court may deem acknowledge the deprivation of liberty which places such
suitable to provide proper care and guidance for the persons outside the protection of law.
minor (Sec.13).
1. Writ of Amparo (“to protect”) – originated in Mexico;
Temporary visitation rights: The court shall provide in 2. Amparo Libertad – for the protection of personal
its order awarding provisional custody appropriate freedom equivalent to Habeas Corpus writ;
visitation rights to the non - custodial parent or parents 3. Amparo Contra Leyes – for judicial review of
unless the court finds said parent or parents unfit or constitutionality of statutes;
disqualified (Sec.15). 4. Amparo Casacion – for judicial review of
constitutionality and legality of judicial decisions;
Hold Departure Order: The minor child subject of the 5. Amparo Administrativo – for judicial review of
petition shall not be brought out of the country without administrative actions; and
prior order from the court while the petition is pending. 6. Amparo Agrario – protection of peasant’s rights
derived from agrarian reform process (Secretary of
The Court, motu proprio or upon application under oath, National Defense v. Manalo, G.R. No. 180906, October
may issue an ex parte hold departure order (Sec.16). 7, 2008).
Note: The court may also issue a Protection Order Limited to life, liberty and security because there are
(Sec.17). other enforced remedies.
Appeal : Notice of appeal within 15 days from notice of Broad enough to encompass both actual and threatened
denial of motion for reconsideration or new trial (Sec.19). violation of human rights.
Note: No appeal shall be allowed unless a motion for Who may file (order of preference): By the aggrieved
reconsideration or new trial has been filed. party or by any qualified person or entity in the following
order:
Petition for Writ of Habeas Corpus 1. Any member of the immediate family, namely: the
Shall be enforceable within its judicial region to which the spouse, children and parents of the aggrieved party;
Family Court belongs (Sec. 20).

2. Any ascendant, descendant or collateral relative of the court or any justice thereof, or to any RTC where the
aggrieved party within the fourth civil degree of threat, act or omission was committed or any of its
consanguinity or affinity, in default of those mentioned elements occurred;
in the preceding paragraph; or 3. When issued by the Supreme Court or any of its
3. Any concerned citizen, organization, association or justices, it may be returnable to such Court or any
institution, if there is no known member of the justice thereof, or before the Sandiganbayan or the
immediate family or relative of the aggrieved party. Court of Appeals or any of their justices, or to any RTC
in the place where the threat, act or omission was
Filing of a petition by the aggrieved party suspends the committed or any of its elements took place (Sec.3).
right of all other authorized parties to file similar petitions.
Note: Due to the extraordinary nature of the writ, which
Likewise, the filing of the petition by an authorized party protects the mother of all rights –the right to life – the
on behalf of the aggrieved party suspends the right of all petition may be filed on any day, including Saturdays,
others, observing the order established herein (Sec. 2). Sundays and holidays; and at any time, from morning until
evening.
Ratio: To prevent the indiscriminate and groundless filing
of petitions for amparo which may even prejudice the right No docket fees
to life, liberty or security of the aggrieved party. Ratio: The enforcement of these sacrosanct rights should
not be frustrated by lack of finances.
Where to file:
1. Regional Trial Court where the threat, act or omission Issuance of the Writ: Upon the filing of the petition, the
was committed or any of its elements occurred; court, justice or judge shall immediately order the
2. With the Sandiganbayan, Court of Appeals, the issuance of the writ if on its face it ought to issue. The writ
Supreme Court or any justice of such courts. shall be served immediately.
This writ shall be enforceable anywhere in the Philippines. The writ should set the date and time for a summary
hearing of the petition which shall not be later than seven
Note: Basically similar to the Rule on petitions for the writ (7) days from the date of its issuance (Sec. 13).
of habeas corpus. It is, however, different because it
includes the Sandiganbayan for the reason that public Punishment for refusal to issue writ: Contempt without
officials and employees will be respondents in amparo prejudice to other disciplinary actions (Sec. 16).
petitions.
Return
Contents of the verified petition The Return serves as the responsive pleading to the
1. Personal circumstances of the petitioner and of petition. Unlike an Answer, the Return has other purposes
respondent responsible for the threat, act or omission; aside from identifying the issues in the case. Respondents
2. Violated or threatened right to life, liberty or security of are also required to detail the actions they had taken to
the party aggrieved. Stating in detail the circumstances; determine the fate or whereabouts of the aggrieved party
3. Specify the names, personal circumstances of the (De Lima v. Gatdula, G.R. No. 204528, February 19,
investigating authority or individuals, as well as the 2013).
manner and conduct of investigation;
4. Actions and recourses taken by the petitioner to Contents of return
determine the whereabouts of aggrieved party and 1. The lawful defenses to show that the respondent did not
identity of the person responsible for the threat, act or violate or threaten with violation the right to life, liberty
omission; and security of the aggrieved party, through any act or
5. The relief prayed for; omission;
6. A general prayer for other just and equitable reliefs may 2. The steps or actions taken by the respondent to
be included (Sec. 5). determine the fate or whereabouts of the aggrieved
party and the person or persons responsible for the
Where returnable; enforceable threat, act or omission;
1. When issued by the RTC or an judge thereof, the writ is 3. All relevant information in the possession of the
returnable before such court or judge; respondent pertaining to the threat, act or omission
2. When issued by the Sandiganbayan, Court of Appeals against the aggrieved party; and
or any of their justices, it may be returnable to such

4. If the respondent is a public official or employee, the 11.Motion for reconsideration of interlocutory orders or
return shall further state the actions that have been or interim relief orders; and
will still be taken: 12. Petition for certiorari, mandamus or prohibition against
a. To verify the identity of the aggrieved party; any interlocutory order (Sec. 11).
b. To recover and preserve evidence related to the
death or disappearance of the person identified in the The filing of motion for new trial and petition for relief from
petition which may aid in the prosecution of the judgment are allowed because denial of these remedies
person or persons responsible. may jeopardize the rights of the aggrieved party.
c. To identify witnesses and obtain statements from (Annotation to the Writ of Amparo).
them concerning the death or disappearance;
d. To determine the cause, manner, location and time of Effect of failure to file return: The court, justice or judge
death or disappearance as well as any pattern or shall hear the petition ex parte.
practice that may have brought about the death or
disappearance; Procedure for hearing: The hearing shall be summary,
e. To identify and apprehend the person or persons but the judge may call a preliminary conference to simplify
involved in the death or disappearance; and the issues and determine the possibility of obtaining
f. To bring the suspected offenders before a competent stipulations and admissions from the parties.
court.
The hearing shall be held on a daily basis until completed
The return shall also state other matters relevant to the and is given the same priority as that of petitions for writ of
investigation, its resolution and the prosecution of the habeas corpus.
case.
Interim reliefs available to petitioner (TIP)
Respondent shall file a verified written return together with 1. T emporary protection order – The court, justice or
supporting affidavits within 72 hours after service of the judge, upon motion or motu proprio, may order that the
writ. The period to file a return cannot be extended except petitioner or the aggrieved party and any member of the
on highly meritorious grounds (Sec. 9). immediate family be protected in a government agency
or by an accredited person or private institution capable
No general denial – the policy is to require revelation of all of keeping and securing their safety. If the petitioner is
evidence relevant to the petition. an organization, association or institution referred to in
Section 3(c) of this Rule, the protection may be
Avoids the ineffectiveness of the writ of habeas corpus, extended to the officers involved.
where often the respondent makes a simple denial in the 2. I nspection order - The court, justice or judge, upon
return that he or she has custody over the missing person, verified motion and after due hearing, may order any
and the petition is dismissed. person in possession or control of a designated land or
other property, to permit entry for the purpose of
Omnibus waiver rule inspecting, measuring, surveying, or photographing the
The respondent must plead all his defenses in the return. property or any relevant object or operation thereon.
Failure to do so shall operate as a waiver of such 3. P roduction order - The court, justice or judge, upon
defenses not therein pleaded (Sec. 10). verified motion and after due hearing, may order any
person in possession, custody or control of any
Prohibited pleadings and motions designated documents, papers, books, accounts,
1. Motion to dismiss; letters, photographs, objects or tangible things, or
2. Motion for extension of time to file return, opposition, objects in digitized or electronic form, which constitute
affidavit, position paper and other pleadings; or contain evidence relevant to the petition or the return,
3. Dilatory motion for postponement; to produce and permit their inspection, copying or
4. Motion for a bill of particulars; photographing by or on behalf of the movant.
5. Counterclaim or cross-claim;
6. Third-party complaint; Interim reliefs available to the respondent: Upon
7. Reply; verified motion of the respondent and after due hearing,
8. Motion to declare respondent in default; the court, justice or judge may issue an inspection order
9. Intervention; or production order. A motion for inspection order shall
10. Memorandum; be supported by affidavits or testimonies of witnesses

having personal knowledge of the defenses of the determination it cannot proceed for a valid cause such as
respondent. the failure of petitioner or witnesses to appear due to
threats on their lives (Liberalized rule on dismissal).
Burden of proof and standard of diligence required:
Parties shall establish their claims by substantial The petition shall be dismissed with prejudice upon failure
evidence. to prosecute the case after the lapse of two (2) years from
notice to the petitioner of the order archiving the case
If respondent is a private individual or entity, must prove (Sec. 20).
that ordinary diligence as required by applicable laws,
rules and regulations was observed in the performance of Institution of separate actions: Filing of a petition for the
duty. If a public official or employee, extraordinary writ of amparo shall not preclude the filing of separate
diligence is required. criminal, civil or administrative actions (Sec. 21).
Presumption of regularity in the performance of official Effect of filing of a criminal action: When a criminal
duty cannot be invoked which is in accord with current action has been commenced, no separate petition for the
jurisprudence on custodial interrogation and search writ shall be filed. The reliefs under the writ shall be
warrant cases. available by motion in the criminal case. The procedure
under the Rule on the Writ of Amparo shall govern the
There is no need to show that petitioner has exhausted disposition of reliefs available under the writ Sec. 22).
prior administrative remedies.
Consolidation: When a criminal action is filed
Judgment: The court shall render judgment within ten subsequent to the filing of a petition for the writ, the latter
(10) days from the time the petition is submitted for shall be consolidated with the criminal action.
decision.
When a criminal action and a separate civil action are filed
No enforcement of 5 days like in Habeas Data (Sec. 18). subsequent to a petition for a writ of amparo, the latter
shall be consolidated with the criminal action. After
Appeal: Within 5 days to appeal to the SC under Rule 45 consolidation, the procedure under this Rule shall
and may raise questions of fact or law or both (Sec. 19). continue to apply to the disposition of the reliefs in the
petition (Sec. 23).
Ratio: Amparo proceedings involve determination of facts
considering its subject–extralegal killings and enforced Doctrine of command responsibility in amparo
disappearances. proceedings: It would be inappropriate to apply to these
proceedings the doctrine of command responsibility, as a
Judgment subject to appeal via Rule 45 form of criminal complicity through omission, for the
If the allegations are proven with substantial evidence, the criminal liability is beyond the reach of amparo.
court shall grant the privilege of the writ and such reliefs
as may be proper and appropriate. The judgment should It does not determine guilt nor pinpoint criminal culpability
contain measures, which the judge views as essential for for the disappearance, threats thereof or extrajudicial
the continued protection of the petitioner in the Amparo killings; it determines responsibility, or at least
case. These measures must be detailed enough so that accountability, for the enforced disappearance, threats
the judge may be able to verify and monitor the actions thereof or extrajudicial killings for purposes of imposing
taken by the respondents. Is it this judgment that could be the appropriate remedies to address the disappearance or
subject to appeal to the Supreme Court via Rule 45 (De extrajudicial killings.
Lima v. Gatdula, G.R. No. 204528, February 19, 2013).
If command responsibility were to be invoked and applied
The privilege of the Writ of Amparo should be to these proceedings, it should, at most, be only to
distinguished from the actual order called the Writ of determine the author who, at the first instance, is
Amparo. The prvilege includes availment of the entire accountable for, and has the duty to address, the
procedure outlined in AM No. 07-9-12-SC (De Lima v. disappearance or harassments complained of, so as to
Gatdula, G.R. No. 204528, February 19, 2013). enable the Court to devise remedial measures that may
be appropriate under the premises to protect rights
Archiving and revival of cases: The court shall not covered by the writ of amparo (Rubrico, et al. v.
dismiss the petition, but shall archive it, if upon its

Macapagal-Arroyo, et al., G.R. No. 183871, February 18, officials to allow access to documents about the missing
2010). person. While amparo denies state officials the defense of
denial with which they normally evade petitions for habeas
Note: The writ of amparo, in its present form, is confined corpus that families of missing persons file, and compels
only to these two instances of “extralegal killings” and them instead to exert efforts to find these missing persons
enforced disappearances” (Rev. Fr. Reyes v. Court of or face sanctions (Festin, p.213).
Appeals, et al., G.R. No. 182161, December 3, 2009).
Note: The writ of habeas data cannot be invoked in labor
It is now clear that for the protective writ of amparo to disputes where there is no unlawful violation of the right to
issue, allegation and proof that the persons subject life, liberty, or security (Meralco v. Lim, G.R. No. 184769,
thereof are missing are not enough. It must also be shown October 5, 2010).
and proved by substantial evidence that the
disappearance was carried out by, or with the Habeas data cannot be invoked when respondents in the
authorization, support or acquiescence of, the State or a petition for issuance of the writ are not gathering,
political organization, followed by a refusal to collecting, or storing data or information (Castillo v. Cruz,
acknowledge the same or give information on the fate or G.R. No. 182165, November 25, 2009).
whereabouts of said missing persons, with the intention of
removing them from the protection of the law for a Who may file: Any aggrieved party may file a petition for
prolonged period of time. Simply put, the petitioner in an the writ of habeas data. However, in cases of extralegal
amparo case has the burden of proving by substantial killings and enforced disappearances, the petition may be
evidence the indispensable element of government filed by:
participation (Navia v. Pardico, G.R. No. 184467, June 19, 1. Any member of the immediate family of the aggrieved
2012). party, namely: the spouse, children and parents; or
2. Any ascendant, descendant or collateral relative of the
It is not a writ to protect concerns that are purely property aggrieved party within the fourth civil degree of
or commercial (Tapuz, et al. v. Judge Del Rosario, G.R. consanguinity or affinity, in default of those mentioned
No. 182484, June 17, 2008). in the preceding paragraph (Sec. 2).
Note: Unlike in amparo, human rights organizations or

RULE ON W RIT OF HABEAS DATA institutions are no longer allowed to file the petition.
(A.M. No. 08-1-16-SC, January 22, 2008) Where to file:

(Effectivity: February 2, 2008) 1. Regional Trial Court where the petitioner or respondent
resides, or that which has jurisdiction over the place
Writ of Habeas Data where the data or information is gathered, collected or
A remedy available to any person whose right to privacy stored, at the option of the petitioner.
in life, liberty or security is violated or threatened by an 2. Supreme Court or the Court of Appeals or the
unlawful act or omission of a public official or employee, or Sandiganbayan when the action concerns public data
of a private individual or entity engaged in the gathering, files of government offices (Sec. 3).
collecting or storing of data or information regarding the
person, family, home and correspondence of the Where returnable:
aggrieved party (Sec. 1). When issued by:
1. The RTC or any judge thereof – returnable before such
The writ in general is designed to safeguard individual court or judge
freedom from abuse in the information age by means of 2. CA or the Sandiganbayan or any of its justices – before
an individual complaint presented in a constitutional court. such court or any justice thereof, or to any Regional
Specifically, it protects the image, privacy, honor, Trial Court of the place where the petitioner or
information, self determination, and freedom of respondent resides, or that which has jurisdiction over
information of a person (The Philippine Supreme Court’s the place where the data or information is gathered,
Bulletin, Benchmark Online November 2007). collected or stored.
3. SC or any of its justices – before such Court or any
Habeas data vis-à-vis amparo: Habeas data essentially justice thereof, or before the Court of Appeals or the
allows families of victims of enforced disappearance to Sandiganbayan or any of its justices, or to any Regional
petition the courts to compel government and security Trial Court of the place where the petitioner or

respondent resides, or that which has jurisdiction over 2. In case of respondent in charge, possession or control
the place where the data or information is gathered, of the data or information subject of the petition:
collected or stored (Sec. 4). a. A disclosure of the data or information about the
petitioner, the nature of such data or information, and
Note: The writ of habeas data shall be enforceable the purpose for its collection.
anywhere in the Philippines. b. The steps of actions taken by the respondent to
ensure the security and confidentiality of the data or
Docket Fees: No docket and other lawful fees shall be information,
required from an indigent petitioner (Sec. 5). c. The currency and accuracy of the data or information
held.
Note: A petition for a writ of habeas data must be 3. Other allegations relevant to the resolution of the
verified. proceeding (Sec. 10).
Contents of the petition (P-MALRO) Effect of failure to file a return: The court shall proceed
1. P ersonal circumstances of the petitioner and to hear the petition ex parte, granting the petitioner such
respondent; relief as the petition may warrant unless the court in its
2. The m anner the right of privacy is violated or discretion requires the petitioner to submit evidence (Sec.
threatened; 14).
3. A ctions and recourses taken by petitioner to secure the
date or information; Note: Making a false return, or refusing to make a return;
4. L ocation of the files, registers or database, the or any person who otherwise disobeys or resists a lawful
government office, person in charge, in possession and process or order of the court shall be punished by
control of the data, if known; contempt (Sec. 11).
5. R eliefs prayed for; and
6. O ther relevant reliefs as are just & equitable (Sec. 6). Defenses available to respondent
1. National security;
Issuance of the writ: Upon the filing of the petition, the 2. State secrets;
court, justice or judge shall immediately order the 3. Privileged communications;
issuance of the writ if on its face it ought to issue. 4. Confidentiality of the source of information of media and
others (Sec. 12).
Clerk of court (COC) shall issue the writ under the seal of
the court and cause it to be served within three (3) days Note: Hearing in chambers may be conducted where the
from the issuance; or, in case of urgent necessity, the respondent invokes the abovementioned defenses (Sec.
justice or judge may issue the writ under his or her own 12).
hand, and may deputize any officer or person serve it
(COC’s refusal to issue the writ: Contempt without Prohibited pleadings and motions
prejudice to other disciplinary actions) (Secs. 7 & 11). 1. Motion to dismiss;
2. Motion for extension of time to file return, opposition,
The writ shall also set the date and time for summary affidavit, position paper and other pleadings;
hearing of the petition which shall not be later than ten 3. Dilatory motion for postponement;
(10) working days from the date of its issuance (Sec. 16). 4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
Return: Respondent shall file a verified written return 6. Third-party complaint;
together with supporting affidavits within five (5) working 7. Reply;
days from service of the writ, which period may be 8. Motion to declare respondent in default;
reasonably extended by the Court for justifiable reasons 9. Intervention;
(General Denial of the allegations in the petition is not 10. Memorandum;
allowed) (Sec. 17). 11. Motion for reconsideration of interlocutory orders or
interim relief orders; and
Contents of return: 12. Petition for certiorari, mandamus or prohibition against
1. The lawful defenses such as national security, state any interlocutory order. (Sec. 13)
secrets, privileged communication, confidentiality of the
source of information of media and others,

Hearing Institution of separate actions: Filing of a petition for the

Summary but the judge may call a preliminary conference writ of habeas data shall not preclude the filing of
to simplify the issues and determine the possibility of separate criminal, civil or administrative actions (Sec. 20).
obtaining stipulations and admissions from the parties.
Consolidation:
When a court may hear the petition in chambers 1. When a criminal action is filed subsequent to the filing
Where the respondent invokes the defense that: of a petition for the writ, the latter shall be consolidated
1. The release of the data or information in question shall with the criminal action.
compromise national security or state secrets; or 2. When a criminal action and a separate civil action are
2. The data or information cannot be divulged to the public filed subsequent to a petition for a writ of habeas data,
due to its nature or privileged character. the petition shall be consolidated with the criminal
action.
Judgment: Court to render judgment within ten (10) days
from the time the petition is submitted for decision. After consolidation, the procedure under this Rule shall
continue to govern the disposition of the reliefs in the
If the allegations in the petition are proven by substantial petition.
evidence, the court shall enjoin the act complained of, or
order the deletion, destruction, or rectification of the When a criminal action has been commenced, no
erroneous data or information and grant other relevant separate petition for the writ shall be filed. The relief
reliefs as may be just and equitable otherwise, the under the writ shall be available to an aggrieved party
privilege of the writ shall be denied. by motion in the criminal case.
Upon its finality, judgment enforced within five (5) working The procedure under this Rule shall govern the disposition
days. of the reliefs available under the writ of habeas data (Sec.
21).
Grant of the writ vs. Grant of the privilege of the writ:
The grant of the writ refers to the decision of the court to See Comparative Chart of Habeas Corpus, Writ of
give due course to the petition, require respondents to file Amparo and Habeas Data on Page 270
their return and set the petition for hearing. The grant of
the privilege of the writ means that the petition is found
meritorious, the prayers therein are granted and the RULE 103
petitioner is granted the relief sought. CHANGE OF NAME
Return of service: The officer who executed the
judgment shall, within 3 days from its enforcement, make Procedure for Change of Name under Rule 103
a verified return to the court.
Petition for Change of Name
Contents of the return of service
1. Full statement of the proceedings under the writ; and Court order fixing the date and place of hearing
2. Complete inventory of the database or information, or
documents or articles inspected, updated, rectified, or
deleted, with copies served on the petitioner and the Publication of the court order fixing the date and place
respondent. of hearing, at least once a week for 3 successive weeks
3. Statement by the officer how the judgment was in a newspaper of general circulation
enforced and complied with by the respondent; and
4. All the objections of the parties regarding the manner
and regularity of the service of the writ (Sec. 17). Hearing on the Petition
Hearing on officer’s return: The court shall set the date Judgment granting / denying the change of name.
with due notice to the parties Copy of the judgment shall be served upon the civil
registrar, who shall annotate the same
Appeal: Within five (5) days to appeal to the SC under
Rule 45 and may raise questions of fact or law or both.

Applicability of Rule 103

An alien can petition for a change of name but he must be The petition shall be signed and verified by the person
domiciled in the Philippines (Ong Huan Tin v. Republic of desiring his name changed or some other person in his
the Philippines, G.R. No. L-20997, April 27, 1967). behalf.
The name that can be changed is the name that appears Requirement of verification is a formal, and not a
in the civil register, and not in the baptismal certificate or jurisdictional requisite. It is not a ground for dismissing
that by which the person is known in the community (Ng petition.
Yao Siong v. Republic of the Philippines, G.R. No. L-
20306, March 31, 1966). Under Rule 103, the word “person” is a generic term
which is not limited to Filipino citizens, but embraces all
Legal separation is not a ground for the female spouse for natural persons. The rule does not even require that the
a change of name under Rule 103 (Laperal v. Republic of citizenship of the petitioner be stated in the petition (Yu v.
the Philippines, G.R. No. L-18008, October 30, 1962). Republic of the Philippines, G.R. No. L-20874, May 25,
1966).
A change of name granted by the court affects only a
petitioner. A separate petition for change of name must be All of the applicant’s aliases must be stated in the
filed for his/her spouse and children (Secan Kok v. petition’s title. Otherwise, it would be a fatal defect (Go
Republic of the Philippines, G.R. No. L-27621, August 30, Chiu Beng v. Republic of the Philippines, G.R. No. L-
1973). 29574, August 18, 1972).
Sex reassignment is not a valid ground to change one’s Jurisdictional requirements

first name (applies to both Rule 103 and R.A. No. 9048) 1. The verified petition should be published for three
(Silverio v. Republic of the Philippines, G.R. No. 174689, successive weeks in some newspaper of general
October 22, 2007). circulation in the province;
2. Both the title or caption of the petition and its body shall
SECTION 1. VENUE recite:
The RTC of the province where the petitioner has been a. Name/names or aliases of the applicant;
residing for 3 years prior to the filing of the petition. b. Cause for which the change of name is sought;
c. New name asked for (Secan Kok v. Republic of the
A change of name is a proceeding in rem. Jurisdiction to Philippines, supra.).
hear and determine the petition for change of name is
acquired after due publication of the order containing Petition should be filed by applicant upon reaching the
certain data (Secan Kok v. Republic of the Philippines, age of majority (Regalado, p. 191).
supra).
Ratio: A change of name is a matter of public interest
The State has an interest in the names borne by (Secan Kok v. Republic of the Philippines, supra).
individuals and entries for purposes of identification, and
that a change of name is a privilege and not a right, so SECTION 3. ORDER FOR HEARING
that before a person can be authorized to change his Hearing shall not be within 30 days prior to an election nor
name given him either in his certificate of birth or civil within 4 months after the last publication of notice of
registry, he must show proper or reasonable cause, or any hearing.
compelling reason which may justify such change (In Re:
Julian Lin Carulasan Wang v. Cebu City Civil Registrar, The court shall promulgate an order:
G.R. No. 159966, March 30, 2005). 1. Recital of the purpose of the petition;
2. Fix the date and place of hearing; and
SECTION 2. CONTENTS OF PETITION 3. Direct that a copy of the order be published before the
1. That petitioner is a bona fide resident of the province hearing for once a week for three consecutive weeks in
where petition is filed for at least three years prior to the a newspaper of general circulation.
date of filing;
2. Cause for change of name; Effect of discrepancy in the petition and published
3. Name asked for; order: The defect in the petition and the order, as to the
4. All names by which petitioner is known (Secan Kok v. spelling of the name of the petitioner, is substantial,
Republic of the Philippines, supra). because it did not correctly identify the party to said

proceedings (Tan v. Republic of the Philippines, G.R. No. SECTION 6. SERVICE OF JUDGMENT
L-16384, April 26, 1962). Civil Registrar of the city or municipality where the court is
situated shall be furnished with a copy of the judgment.
Grounds for change of name (R-CHEN)
1. Name is r idiculous, tainted with dishonor or extremely Consequence of a grant to change name: A mere
difficult to write or pronounce; change of name would not cause a change in one’s
2. C onsequence of a change of status; e.g. legitimated existing family relations, nor create new family rights and
child; duties where none exists before. Neither would it affect a
3. H abitual and continuous use and has been known since person’s legal capacity, civil status or citizenship. What
childhood by a Filipino name, unaware of her alien would be altered is the word or group of words by which
parentage; he is identified and distinguished from the rest of his fellow
4. A sincere desire to adopt a Filipino name to e rase signs men (Ang Chay v. Republic of the Philippines, G.R. No. L-
of former alienage, all in good faith and without 28507, July 31, 1970).
prejudicing anybody; or
5. N ecessity to avoid confusion; Note: When the marriage ties or vinculum no longer exists
as in the case of death of a husband or divorce as
Title of petition must contain the following: authorized by the Muslim Code, the widow or divorcee
1. Official name (birth certificate) – be very particular with need not seek judicial confirmation of the change in her
the spelling because it may avoid or annul the civil status in order to revert to her maiden name as the
proceedings; it is jurisdictional; use of her former husband’s name is optional and not
2. All aliases; and obligatory for her. Neither is she required to secure judicial
3. Name asked for. authority to use the surname of her husband after the
marriage as no law requires it (Yasin v. Shari’a District
Note: All the names or aliases must appear in the title Court, G.R. No. 94986, 23 February 1995).
or caption of the petition, because the reader usually
merely glances at the title of the petition and may only RULE 104
proceed to read the entire petition if the title is of interest
to him (Secan Kok v. Republic of the Philippines, supra).
VOLUNTARY DISSOLUTION OF
CORPORATIONS
The non-inclusion of all the names or aliases of the
applicant in the caption of the order or in the title of the Note: Dissolution of corporations should now be filed
petition defeats the very purpose of the required with the Securities and Exchange Commission and is
publication (Republic of the Philippines v. Zosa, G.R. No. covered by Title XIV, Sections 117 to 122 of the
L-48762, September 12, 1988). Corporation Code of the Philippines.
SECTION 4. HEARING A.M. No. 00-11-03-SC, promulgated on November 21,

Who may oppose the petition 2000, designated some RTC branches nationwide (also
1. Any interested person; known as Corporate courts) to try and decide SEC cases
2. The Republic of the Philippines through the Solicitor enumerated under Sec. 5 of P.D. 902-A.
General or the proper provincial or city prosecutor.
SECTION 5. JUDGMENT RULE 105

A change of name granted by the court affects only the J UDICIAL APPROVAL OF
petitioner. A separate petition for change of name must be VOLUNTARY R ECOGNITION OF
filed for his wife or children (Secan Kok v. Republic of the
Philippines, supra). MINOR NATURAL CHILDREN
A decree of adoption grants the adoptee the right to use Note: The matter of the filiations of illegitimate children
the adopter’s surname, if change of first name is so and the proof thereof is governed by Articles 172 and 173,
desired, it must be prayed and alleged in the petition for in relation to Article 175, of the Family Code.
adoption (Sec. 16, A.M. No. 02-6-02-SC).
Voluntary recognition
An admission of the fact of paternity or maternity by the
presumed parent, expressed in the form prescribed by the

Civil Code. Its essence lies in the avowal of the parent

that the child is his; the formality is added to make the RULE 106
admission incontestable, in view of the consequences CONSTITUTION OF FAMILY HOME
(Gapusan Chua v. Court of Appeals, G.R. No. L-46746,
March 15,1990).
Note: The rule has already been repealed by the Family
Art. 172. The filiation of legitimate children is established Code, which took effect on August 3, 1988.
by any of the following:
1. The record of birth appearing in the civil register or a There is no need to constitute the family home judicially or
final judgment; or extrajudicially. If the family actually resides in the
2. An admission of legitimate filiation in a public document premises, it is, automatically considered as a family home
or a private handwritten instrument and signed by the as contemplated by law (Modequillo v. Breva, G.R. No.
parent concerned. 86355 May 31, 1990).
In the absence of the foregoing evidence, the legitimate Family home

filiation shall be proved by: Constituted on a house and lot from the time it is occupied
1. The open and continuous possession of the status of a as a family residence.
legitimate child; or
2. Any other means allowed by the Rules of Court and The family home, constituted jointly by the husband and
special laws (265a, 266a, 267a). the wife or by an unmarried head of a family, is the
dwelling house where they and their family reside, and the
In effect, judicial approval of voluntary recognition is land on which it is situated (Art. 152, NCC).
required only when filiation is proved by:
1. Open and continuous possession of status of a The family home is deemed constituted on a house and
legitimate child; or lot from the time it is occupied as a family residence. From
2. Any other means allowed by the Rules of Court and the time of its constitution and so long as any of its
other special laws (Gono-Javier v. Court of Appeals, beneficiaries actually resides therein, the family home
G.R. No. 111994, December 29, 1994). continues to be such and is exempt from execution, forced
sale or attachment except as hereinafter provided and to
Art. 173. The action to claim legitimacy may be brought the extent of the value allowed by law (Art. 153, NCC).
by the child during his or her lifetime and shall be
transmitted to the heirs should the child die during minority The beneficiaries of a family home are:
or in a state of insanity. In these cases, the heirs shall 1. The husband and wife, or an unmarried person who is
have a period of five years within which to institute the the head of a family; and
action. 2. Their parents, ascendants, descendants, brothers and
sisters, whether the relationship be legitimate or
Art. 175. Illegitimate children may establish their illegitimate, who are living in the family home and who
illegitimate filiation in the same way and on the same depend upon the head of the family for legal support
evidence as legitimate children. (Art. 154, NCC).
The action must be brought within the same period The family home shall be exempt from execution, forced
specified in Article 173, except when the action is based sale or attachment except:
on the second paragraph of Article 172, in which case the 1. For nonpayment of taxes;
action may be brought during the lifetime of the alleged 2. For debts incurred prior to the constitution of the family
parent. home;
3. For debts secured by mortgages on the premises
before or after such constitution; and
4. For debts due to laborers, mechanics, architects,
builders, materialmen and others who have rendered
service or furnished material for the construction of the
building (Art. 155, NCC).

without any news since the receipt of the last news about
RULE 107 him, after two (2) years if without administrator or after five
ABSENTEES (5) years if with administrator.
Absentee Incompetent SECTION 1. APPOINTMENT OF REPRESENTATIVE

This rule is based on Articles 381 and 382 of the Civil
Includes persons suffering Code.
the penalty of civil
interdiction or who are
One who disappears from When a person disappears from his domicile, his
hospitalized lepers,
his domicile and his whereabouts being unknown, and without leaving an
prodigals, deaf and dumb
whereabouts being agent to administer his property, the judge, at the instance
who are unable to read and
unknown and without of an interested party, a relative, or a friend, may appoint
write, those who are of
having left an agent to a person to represent him in all that may be necessary
unsound mind, and persons
administer his property or (Art. 381, NCC).
who are unable to take care
the power of agent has
of themselves and manage This same rule shall be observed when under similar
expired.
their property by reason of circumstances the power conferred by the absentee has
age, disease, weak mind expired. (Art. 381, NCC)
and other similar causes.
Order of hearing must be
The appointment referred to in the preceding article
published once a week for
having been made, the judge shall take the necessary
3 consecutive weeks in a
measures to safeguard the rights and interests of the
newspaper of general
absentee and shall specify the powers, obligations and
circulation in the province Notice of petition for
remuneration of his representative, regulating them,
or city where absentee guardianship for non-
according to the circumstances, by the rules concerning
resides and declaration of resident may be published
guardians (Art. 322).
absence will only take when court deems it
effect 6 months after its proper.
SECTION 2. DECLARATION OF ABSENCE; WHO MAY
publication in a newspaper
PETITION
of general circulation
This rule is based on Articles 384 and 385 of the Civil
designated by court and in
Code.
the Official Gazette.
Art. 384. Two years having elapsed without any news
Procedures in the Rule on Absentees about the absentee or since the receipt of the last news,
Petition for Appointment of Representative and five years in case the absentee has left a person in
charge of the administration of his property, his absence
may be declared (Art. 384, NCC).
Application for Declaration of absence and
Who may file a petition for appointment of
appointment of Trustee or Administrator
administrator or trustee:
1. The spouse present;
2. The heirs instituted in a will, who may present an
Termination of Administration/ Trusteeship authentic copy of the same;
3. The relatives who would succeed by the law of
intestacy;
Where to file: RTC where the absentee resided before 4. Those who have over the property of the absentee
his disappearance some right subordinated to the condition of his death
(Art. 385, NCC).
Appointment of representative: When a person
disappears, whereabouts are unknown, leaves no agent Purpose of petition: To appoint an administrator over the
or upon expiration of power of agent, during the first two properties of the absentee. Hence, if the absentee left no
(2) years. properties, such petition is unnecessary.
Declaration of absence and appointment of
administrator: When a person disappears and still

One’s disqualification as an heir of the absentee does not newspaper of general circulation in the province or city
inhibit him or her from petitioning for a declaration of where the absentee resides, as the court shall deem best.
absence or to be appointed as an administrator of the
absentee’s estate (Noquera v. Villamor, G.R. No. 84250, SECTION 5. OPPOSITION
July 20, 1992). Oppositor must:
1. State in writing his grounds therefor;
It is not necessary that a declaration of absence be made 2. Serve a copy thereof to petitioner and other interested
in a proceeding separate from and prior to a petition for parties on or before the hearing.
administration (Reyes v. Alejandro, G.R. No. L-32026,
January 16, 1986). SECTION 6. PROOF AT HEARING; ORDER
Art. 386. The judicial declaration of absence shall not take
SECTION 3. CONTENTS OF PETITION effect until six months after its publication in a newspaper
1. The jurisdictional facts; of general circulation.
2. The names, ages, and residences of the heirs instituted
in the will, copy of which shall be presented, and of the SECTION 7. WHO MAY BE APPOINTED
relatives who would succeed by the law of intestacy; Appointment of representative/trustee:
3. The names and residences of creditors and others who 1. Spouse present (preferred); or
may have any adverse interest over the property of the 2. Any competent person.
absentee;
4. The probable value, location and character of the SECTION 8. TERMINATION OF ADMINISTRATION
property belonging to the absentee. Grounds for termination of the administration
1. Absentee appears personally or through an agent;
2. Absentee’s death is proven and heirs appear;
Period of Absence Consequence 3. Third person appears showing that he acquired title
Petition for Appointment of over the property of the absentee (Art. 389, NCC).
Representative (unless the
0-2 years General rule: No independent action for Declaration of
absentee left an agent to
administer his property) Presumption of Death.
2 years to 7 years
(5 years to 7 years Petition for declaration of absence Exception: The need for declaration of presumptive
and appointment of administrator death for purposes of remarriage (Art. 41, Family Code).
in case the
absentee left an or trustee may be filed.
agent) Note: The Family Code provides that for the purpose of
contracting a second marriage, the present spouse must
Considered dead for all intents and file a summary proceeding for the declaration of the
purposes except for purposes of presumptive death of the absentee, without prejudice to
succession (if disappeared under the latter’s reappearance.
Beyond 7 years extraordinary circumstances,
(absence of 4 years considered dead for all purposes, Provisions of the revised rules on evidence on
under extraordinary even succession); presumption of death: That after an absence of seven
circumstance) For purposes of Marriage: 4 years years, it being unknown whether or not the absentee still
continuous absence shall be lives, he is considered dead for all purposes, except for
sufficient for present spouse to those of succession.
remarry, 2 years only under
extraordinary circumstance The absentee shall not be considered dead for the
purpose of opening his succession till after an absence of
SECTION 4. TIME OF HEARING; NOTICE AND ten years. If he disappeared after the age of seventy-five
PUBLICATION THEREOF
years, an absence of five years shall be sufficient in order
Copies of the notice of the time and place fixed for the
that his succession may be opened.
hearing shall be served upon the known heirs, legatees,
devisees, creditors and other interested persons, at least
The following shall be considered dead for all purposes
ten (10) days before the day of the hearing.
including the division of the estate among the heirs:
It shall be published once a week for three (3) consecutive
weeks prior to the time designated for the hearing, in a

1. A person on board a vessel lost during a sea voyage, or SECTION 1. WHO MAY FILE PETITION
an aircraft which is missing, who has not been heard of Any person interested in any act, event, order or decree
for four years since the loss of the vessel or aircraft; concerning the civil status of persons recorded in the civil
2. A member of the armed forces who has taken part in registry.
armed hostilities, and has been missing for four years;
3. A person who has been in danger of death under other Where filed: RTC of the province where the
circumstances and whose existence has not been corresponding civil registrar is located.
known for four years;
4. If a married person has been absent for four Proceedings under Rule 108 may be summary or
consecutive years, the spouse present may contract a adversarial:
subsequent marriage if he or she has a well-founded 1. Summary – when the correction sought to be made is a
belief that the absent spouse is already dead. In case of mere clerical error (now governed by R.A. No. 9048).
disappearance, where there is danger of death under 2. Adversarial - where the rectification affects civil status,
the circumstances hereinabove provided an absence of citizenship or nationality of a party or any other
only two years shall be sufficient for the purpose of substantial change.
contracting a subsequent marriage. However, in any
case, before marrying again, the spouse present must Requisites of adversarial proceedings
institute a summary proceeding as provided in the 1. Petition is filed before the court having jurisdiction over
Family Code and in the rules for a declaration of the impleaded civil registrar and all interested parties;
presumptive death of the absentee, without prejudice to (Sec.3)
the effect of reappearance of the absent spouse (Sec. 3 2. The order of the hearing must be published once a
[w], Rule 131).. week for three consecutive weeks;
3. Notice thereof must be given to the Civil Registrar and
all parties affected thereby;
RULE 108 4. The civil registrar and any person having or claiming
CANCELATION OR CORRECTION any interest under the entry whose cancellation or
OF ENTRIES IN THE CIVIL correction is sought may, within 15 days from notice of
the petition or from the last date of publication of such
REGISTRY notice, file his opposition thereto;
5. Full blown trial.
Procedure for cancellation or correction of entries
under Rule 108 Proceedings for the correction of entries should not be
considered as establishing one’s status in a manner
Petition for Cancellation or Correction of any
conclusively beyond dispute. The status corrected would
entry relating to an act, event order or decree
not have a superior quality for evidentiary purposes. There
concerning the civil status
is no increase or diminution of substantive right (Chiao
Ben Lim v. Zosa, G.R. No. L- 40252, December 29, 1986).
Court order fixing the date and place for Hearing
SECTION 2. ENTRIES SUBJECT TO CANCELLATION
Publication of the court order at least once a week for OR CORRECTION
3 successive weeks in a newspaper of general (BMD LAVLAA- NEC JVC)
circulation, with reasonable notice given to persons 1. B irths;
named in the petition 2. M arriages;
3. D eaths;
4. L egal separations;
Filing of opposition by the civil registrar and any person 5. Judgments of a nnulments of marriage;
having/claiming interest under the entry whose
cancellation/correction is sought, within 15 days from
6. Judgments declaring marriages v oid from the
notice of the petition or from the last date of publication beginning;
of the notice 7. L egitimations;
8. A doptions;
9. A cknowledgments of natural children;
Hearing on the petition 10. N aturalization;
11. E lection, loss or recovery of citizenship;
Judgment granting/denying the petition. Copy of 12. C ivil interdiction;
the judgment shall be served upon the civil
registrar, who shall annotate the same

13. J udicial determination of filiation; majority, with good reason thinks of his/her sex; sexual
14. V oluntary emancipation of a minor; development in cases of intersex persons makes the
15. C hange of name. gender classification at birth inconclusive – it is at
maturity that the gender of such persons is fixed.
Even substantial errors in a civil registry may be corrected 2. To the person with CAH belongs the human right to the
and the true facts established provided the parties pursuit of happiness and of health, and to him should
aggrieved by the error avail themselves of the appropriate belong the primordial choice of what courses of action
adversary proceedings (Republic of the Philippines v. to take along the path of his sexual development and
Valencia, G.R. No. L-32181, March 5, 1986). maturation.
3. There is merit in the change of name of a person with
Adversarial proceeding CAH where the same is the consequence of the
One that has opposing parties; contested as distinguished recognition of his preferred gender.
from an ex parte application, one of which the party
seeking relief has given legal warning to the other party, SECTION 3. PARTIES
and afforded the latter an opportunity to contest it 1. Civil registrar;
(Republic v. Valencia, supra). 2. All persons who have or claim any interest which would
be affected thereby.
Rule 108, when all the procedural requirements
thereunder are followed, is the appropriate adversary SECTION 4. NOTICE AND PUBLICATION
proceeding to effect substantial correction and changes in Order of hearing shall be published once a week for 3
entries of the civil register (Lee v. Court of Appeals, G.R. consecutive weeks in a newspaper of general circulation
No. L-118387, Oct. 11, 2001). in the province and all persons named in the petition shall
be notified.
Whether a petition under Rule 108 can be granted by
reason of “sex change” or “sec reassignment”: No. SECTION 5. OPPOSITION
Since the statutory language of the Civil Register Law was The following are entitled to oppose the petition:
enacted in the early 1900s and remains unchanged, it 1. The Civil Registrar; and
cannot be argued that the terms “sex” as used then is 2. Any person having or claiming any interest under the
something alterable through surgery or something that entry whose cancellation or correction is sought.
allows a post-operative male-to-female transsexual to be
included in the category of “female” (Silverio v. Republic of Within 15 days from notice of the petition or from date of
the Philippines, G.R. No. 174689, October 22, 2007). last publication.
Congenital Adrenal Hyperplasia (CAH) SECTION 6. EXPEDITING PROCEEDINGS

This condition causes the early or “inappropriate” The court may also grant preliminary injunction for the
appearance of male characteristics. x x x. CAH is one of preservation of the rights of the parties pending such
many conditions that involves intersex anatomy. During proceedings.
the twentieth century, medicine adopted the term
“intersexuality” to apply to human beings who cannot be SECTION 7. ORDER
classified as either male or female. The term is now of The Civil Registrar shall be given a copy of the judgment
widespread use. According to Wikipedia, intersexuality “is and annotate the same on his record.
the state of a living thing of a gonochoristic species whose
sex chromosomes, genitalia, and/or secondary sex REPUBLIC ACT N O . 9048
characteristics are determined to be neither exclusively
male nor female. An organism with intersex may have
biological characteristics of both male and female sexes” Republic Act No. 9048 or the “Clerical Error Act” which
(Republic of the Philippines v. Jennifer Cagandahan, G.R. was passed by Congress on February 8, 2001 amended
No. 166676, September 12, 2008). Articles 376 and 412 of the New Civil Code. Republic Act
No. 10172 or “An Act Further Authorizing the City or
Principles laid down by the SC in Republic of the Municipal Civil Registrar or the Consul General to Correct
Philippines v. Cagandahan: Clerical or Typographical Errors in the Day and Month in
1. Where the person is biologically or naturally intersex, the Date of Birth or Sex of a Person Appearing in the Civil
the determining factor in his gender classification would Register Without Need of a Judicial Order amended
be what the individual, having reached the age of Sections 1, 2, 5 and 8 of Republic Act No. 9048.

jurisdictional requirements, particularly on publication, is

Cases Covered: essential in order to vest the court with jurisdiction
1. Clerical or typographical errors and change of first (Regalado, p. 193).
name or nickname
2. Clerical or typographical errors and change of the day Definition of terms:
and month in the date of birth 1. First name – refers to a name or nickname given to a
3. Clerical or typographical errors and change of sex of a person which may consist of one or more names in
person where it is patently clear there was clerical or addition to the middle and last names.
typographical error or mistake in the entry (Sec. 1, R.A. 2. Migrant petitioner – refers to a petitioner whose
No. 9048, as amended by R.A. No. 10172). present residence or domicile is different from the place
where the civil registry record to be corrected was
General Rule: No entry in a civil register shall be changed registered.
or corrected without a judicial order. 3. Record-keeping civil registrar – refers to the
City/Municipal Civil Registrar in whose archive is kept
Exception: Clerical or typographical errors and change of the record, which contains the error to be corrected or
first name or nickname which can be corrected or the first name to be changed. This term shall be used
changed by the concerned city or municipal civil registrar only in cases involving migrant petitioner.
or consul general in accordance with the provisions of this 4. Petition-receiving civil registrar – refers to the
Act and its implementing rules and regulations. City/Municipal Civil Registrar of the city or municipality
where the petitioner resides or is domiciled and who
Clerical or typographical error receives the petition on behalf of the Record-keeping
A mistake committed in the performance of clerical work in Civil Registrar in the case of a migrant petitioner.
writing, copying, transcribing or typing an entry in the civil
register that is harmless and innocuous, such as a Grounds:
misspelled name or misspelled place of birth or the like, 1. The petitioner finds the first name or nickname to be
which is visible to the eyes or obvious to the ridiculous, tainted with dishonor or extremely difficult to
understanding, and can be corrected or changed only by write or pronounce;
reference to other existing record or records: Provided, 2. The new first name or nickname has been habitually
however, That no correction must involve the change of and continuously used by the petitioner and he has
nationality, age or status of the petitioner (Sec. 2 [3] R.A. been publicly known by the first name or nickname in
No. 9048, as amended by Sec. 2 R.A. No. 10172). the community; or
3. The change will avoid confusion (Sec. 4).
Note: It may be very well said that Republic Act No. 9048
is Congress' response to the confusion wrought by the Who may file: Any person of legal age, having direct and
failure to delineate as to what exactly is that so- personal interest in the correction of a clerical or
called summary procedure for changes or corrections of a typographical error in an entry and/or change of first name
harmless or innocuous nature as distinguished from or nickname in the civil register (Sec. 3).
that appropriate adversary proceeding forchanges or
corrections of a substantial kind. The obvious effect is to Person with direct and personal interest:
remove from the ambit of Rule 108 the correction or 1. He is the owner of the record; or
changing of clerical or typographical errors in entries of 2. The owner’s spouse, children, parents, brothers, sisters,
the civil register. Hence, what are left for the scope of grandparents, guardian; or
operation of Rule 108 are substantial changes and 3. Any other person duly authorized by law or by the
corrections in entries of the civil register (Lee v. Court of owner of the document sought to be corrected.
Appeals, G.R. No. 118387, October 11, 2001).
Provided, that when a person is a minor or physically or
Petition for change of name (Rule 103) and petition for mentally incapacitated: petition may be filed on his behalf
cancellation or correction of entries (Rule 108) are by his spouse, or any of his children, parents, brothers,
distinct proceedings. Hence, a party cannot change his sisters, grandparents, guardians, or persons duly
name and correct an entry in a single petition without authorized by law (Sec. 3).
satisfying the jurisdictional requirements (Herrera, p.564).
The cancellation or correction of entries in the Civil

Registry is a proceeding in rem. Strict compliance with all

Where to file: Copies of the petition shall be given to: the city or
1. Local civil registry office or Clerk of the Shari’a Court municipal civil registrar, or the consul general; the Office
where the record being sought to be corrected or of the Civil Registrar General; and the petitioner (Sec. 5).
changed is kept;
2. If petitioner has already migrated to another place in the Duties of the city/municipal civil registrar or the
country: petition-receiving civil registrar of the place Consul General:
where the interested party is presently residing or 1. Examine the petition and its supporting documents;
domiciled (Rule 4, Implementing Rules & Regulations); 2. Post the petition in a conspicuous place provided for
3. Citizens of the Philippines who are presently residing or that purpose for 10 consecutive days after he finds the
domiciled in foreign countries: nearest Philippine petition and its supporting documents sufficient in form
Consulates (Sec. 3). and substance;
3. Act on the petition and render a decision not later than
Contents of the petition: The petition shall be in the form 5 working days after the completion of the posting
of an affidavit, subscribed and sworn to before any person and/or publication requirement;
authorized by the law to administer oaths and shall set 4. Transmit a copy of his decision together with the
forth: records of the proceedings to the Office of the Civil
1. The facts necessary to establish the merits of the Registrar General within 5 working days from the date
petition; of the decision (Sec. 6).
2. That the petitioner is competent to testify to the matters
stated; Duties and powers of the civil registrar general
3. The erroneous entry which are sought to be corrected; 1. Within 10 working days from receipt of the decision
4. All names by which petitioner is known (Secan Kok v. granting the petition, the Civil Registrar General shall
Republic of the Philippines, supra). exercise the power to impugn such decision by way of
an objection based on the following grounds:
Annexes to the petition a. The error is not clerical or typographical;
1. A certified true copy of the certificate or of the page of b. The correction of entries is substantial or
the registry book containing the entries sought to be controversial as it affects the civil status of a person;
corrected or changed; and
2. At least 2 public or private documents showing the c. The basis used in changing the first or nick name of a
correct entries upon which correction or change shall be person does not fall under those provided by law.
based; 2. The Civil Registrar General shall immediately notify the
3. Other documents which the petitioner or the city or city/municipal civil registrar or the consul general of the
municipal civil registrar or the consul general may action taken on the decision.
consider relevant and necessary for the approval of the 3. He has appellate powers over the decision of the local
petition; civil registrars or consul general (Sec. 7).
4. For correction of erroneous entry of date of birth or the
sex of a person: earliest school record or earliest school If the Civil Registrar General fails to exercise his power to
documents such as, but not limited to, medical records, impugn within the prescribed period, the decision of the
baptismal certificate and other documents issued by city/municipal civil registrar or the consul general shall
religious authorities; become final and executor (Sec. 7).
5. For change of gender corrected: certification issued by
an accredited government physician attesting to the fact Effect of approving the petition for change of name:
that the petitioner has not undergone sex change or sex The change shall be reflected in the birth certificate by
transplant. way of marginal annotation. In case there are other civil
6. Certification from appropriate law enforcement agencies registry records of the same person which are affected by
that the petitioner has no pending case or no criminal such change, the decision of approving the change of first
record (Sec. 5 as amended by Sec. 3, R.A. No. 10172). name in the birth certificate, upon becoming final and
executory, shall be sufficient to be used as basis in
Publication requirement: The petition must be published changing the first name of the same person in his other
at least once a week for 2 consecutive weeks in a affected records without need for filing a similar petition. In
newspaper of general circulation. such a case, the successful petitioner shall file a request
in writing with the concerned LCR or Consul to make such
marginal annotation (Rule 12, Implementing Rules &
Regulations 9048, July 24, 2001).

Note: In case of a migrant petitioner, the petition shall be

Availment of the privilege: The correction of clerical or posted first at the office of the petition-receiving civil
typographical error shall be availed of only once with registrar for 10 consecutive days before sending it to the
respect to a particular entry or entries in the same civil record-keeping civil registrar. Upon receipt, the RKCR
registry record. In case of change of first name or shall post again the petition in his office for another 10
nickname in the birth certificate, the privilege shall be consecutive days (Rule 9, IRR 9048).
availed of only once, subject to the provisions of Rule 12
of the Implementing Rules & Regulations (Rule 7, IRR In the case where a person’s civil registry record or
9048). records were registered in the Philippines or in any of the
Philippine Consulates, but the persons presently resides
Payment of Fees: The city or municipal civil registrar or or is domiciled in a foreign country, posting and/or
the consul general shall be authorized to collect publication, as the case may be, shall be done in the
reasonable fees as a condition for accepting the petition. place where the petition is filed and in the place where the
An indigent petitioner shall be exempt from the payment of record sought to be corrected is kept (Rule 9, IRR 9048).
said fee. (Sec. 8 as amended by Sec. 4, R.A. No. 10172)
Grounds for impugning the decision granting the
Procedure: Republic Act No. 9048 petition
1. Error is not clerical or typographical;
Affidavit with supporting documents (3 copies)
2. Correction of an entry or entries in the civil register is
substantial or controversial as it affects the civil status
of a person; or
If change of Filed with the City or Municipal civil
3. The basis used in changing the first name or nickname
first name/ registrar (Local Civil Registrar
[LCR]) or Consul General does not fall under any of the grounds.
nickname:
1.Two weeks
See Comparative Chart: Rule 103, Rule 108, R.A. No.
publication
2.Certification 10-day posting by the LCR or 9048 on Page 252.
that there is no Consul General
pending case RULE 109
or criminal LCR or Consul General: 5 days to APPEALS IN SPECIAL
record ACT on the application PROCEEDINGS
Grants Denies The period of appeals in Special Proceedings shall be 30

days and a record on appeal is required. (Herrera, p. 578)
Transmit decision & records to Civil SECTION 1. ORDERS OR JUDGMENTS FROM WHICH
Registrar General within 5 working days APPEALS MAY BE TAKEN
An interested person may appeal in special proceedings
from such order or judgment rendered which: (ADASCO)
Within 10 days, the If not impugned, 1. A llows or disallows a will;
Civil Registrar the decision 2. D etermines who are the lawful heirs of a deceased
General may becomes final and person, or the distributive share of the estate to which
impugn the executory. such person is entitled;
decision by way of 3. A llows or disallows, in whole or in part, any claim
objection against the estate of a deceased person, or any claim
presented on behalf of the estate in offset to a claim
Notify the LCR or Consul General against it;
with the adverse decision Appeal to Civil ettles the account of an executor, administrator,
4. S
Registrar trustee or guardian;
General 5. C onstitutes, in the proceedings relating to the
LCR or Consul General shall notify settlement of the estate of a deceased person, or the
petitioner administration of a trustee or guardian, a final
determination in the lower court of the rights of the party
File appropriate
Motion for Reconsideration with petition with the
Civil Registrar General proper court

appealing, except that no appeal shall be allowed from

the appointment of a special administrator; and Note: The appeal shall affect every order, decree, or
6. Is the final o rder or judgment rendered in the case, and judgment appealed from, and not merely the interest
affects the substantial rights of the person appealing, which the appellants may have therein (Panis v. Yangco,
unless it be an order granting or denying a motion for a G.R. No. L-29460, December 22, 1928).
new trial or for reconsideration.
Multiple appeals
Note: Rule 109 enumerates the cases wherein multiple A. Settlement of the Estate
appeals are allowed and a record on appeal is required for 1. Order admitting the will to probate;
an appeal to be perfected. The petition for the declaration 2. Appointment of executor or administrator;
of presumptive death of an absent spouse not being 3. Appeal from the order concerning a contested claim;
included in the enumeration, petitioner’s mere notice of 4. Order determining the heirs.
appeal suffices. The reason is that said petition is a 5. Appeal by surety of an executor or administrator,
summary proceeding under the Family Code, and not a admitted as party to an accounting made by such
special proceeding under the Rules of Court (Republic of executor or administrator, in an order of the court
the Philippines v. Court of Appeals, G.R. No. 163604, May approving or disapproving such accounting
6, 2005). (Saguinsin v. Lindayag, G.R. No. L-17759, December
17, 1962 );
Who may appeal? An interested person whose interest 6. Appeal by heir from money claim (Fluemer v. Hix,
must be material and direct, not merely indirect or G.R. No. L-32636, March 17, 1930);
contingent (Teotico v. De Vat, G.R. No. L-18753, March 7. Order for license to sell (Santos v. Roman Catholic
26, 1965). Bishop of Nueva Caceres, G.R. No. L-21289, April
5,1924);
Orders that are not appealable 8. Order against bond (Moran); and
1. Order directing administrator to take action to recover 9. Order to contract obligation (De Borja v. Encarnacion,
amount due to the estate; G.R. No. L-4179, May 30, 1951).
2. Order made in administration proceedings relating to
inclusion or exclusion of items of property in the B. Guardianship
inventory of executor or administrator; 1. Order annulling appointment of guardian (Alemany v.
3. Order appointing special administrator. Sweeney, G.R. No. 1403, March 19, 1904); and
2. Order removing a guardian (Olarte v. Enriquez, G.R.
SECTION 2. ADVANCE DISTRIBUTION IN SPECIAL No. L-16098, October 31, 1960).
PROCEEDINGS
Rule on advance distribution: Notwithstanding a Certiorari and mandamus are not substitutes for
pending controversy or appeal in proceedings to settle the appeal
estate of a decedent, the court: Having lost the remedy to appeal due to the parties’ own
1. In its discretion; and neglect, they cannot seek redress by certiorari and
2. Upon such terms as it may deem just and proper; mandamus, it not appearing that the lower court acted
3. Permit that such part of the estate as may not be without jurisdiction (Profeta v. Guitierrez David, G.R. No.
affected by the controversy or appeal be distributed L-47736, April 18, 1941).
among the heirs or legatees, upon compliance with the
condition in Rule 90.
4. The distributees must post a bond as provided under
Section 1, Rule 90 (Peña and Nolasco Law Office v.
LCN Construction Corp., G.R. No. 174873, August 26,
2008).
Appeal In Ordinary Civil Appeal In Special

Action Proceedings
15 days. 30 days.
Notice of Appeal and Record on Appeal and
docket fees. docket fees.
No extension. Maybe extended on
meritorious grounds.

VENUE AND J URISDICTION IN SPECIAL PROCEEDINGS
Special Proceeding Venue Jurisdiction

MTC if the gross value of the
estate does not exceed
Settlement of the Estate Residence of the decedent or if the
PhP300,000, or does not exceed
decedent is a non-resident, place
PhP400,000 in Metro Manila
where he had an estate
RTC if the gross value of the
estate exceeds the above amounts
a. Person dies intestate leaving no
heir – Residence of the decedent
RTC
or if non-resident, in the place
where he had an estate.
Escheat
b. Reversion – Where the land lies
RTC
in whole or in part
c. Unclaimed Balances Act –
Where the dormant deposits are RTC
located
Where the minor or incompetent Family Court (in case of Minors)
Appointment of Guardians resides RTC (Regular courts—in case of
Incompetents)
Where the will was allowed or
Appointment of Trustees where the property or portion
RTC/MTC
thereof affected by the trust is
situated
Domestic Adoption Where the adopter resides Family Court
Where the adoptee resides if filed Family Court or the Inter-Country
Inter-Country Adoption with the Family Court Adoption Board
Rescission of Adoption Where the adoptee resides Family Court
SC, CA, RTC, MTC in the province
Habeas Corpus or city in case there is no RTC
Where the detainee is detained (if judge;
the petition is filed with the RTC)
Sandiganbayan only in aid of its
appellate jurisdiction.
Province or city where petitioner
Custody of Minors Family Court
resides or minor may be found.
Where the petitioner or respondent
resides, or that which has RTC;
jurisdiction over the place where Sandiganbayan, CA or SC when
Habeas Data
the data or information is gathered the action concerns public data
collected or stored, at the option of files or government offices
petitioner
Where the threat act or omission RTC;
Amparo Proceedings was committed or any of its Sandiganbayan, CA, or SC or any
elements occurred justice thereof
Habeas Corpus in relation to Where the petitioner resides or
Family Court, CA and SC.
minor where the minor may be found.
Change of Name Where petitioner resides RTC

Special Proceeding Venue Jurisdiction

Appointment of Representative
Where the absentee resided
of Absentee/Declaration of RTC
before his disappearance
Absence
Cancellation/Correction of
Entries in the Civil Registries Where the corresponding Civil
RTC
Registry is located
Where petitioner or respondent

has been residing for at least 6
Petition for Declaration of Nullity, months prior to the date of filing, in
Family Court
Annulment, Legal Separation case of non resident respondent,
where he may be found at the
election of the petitioner.

COMPARATIVE CHART: HABEAS CORPUS, W RIT OF A MPARO AND HABEAS

DATA
Writ of Habeas Corpus Writ of Amparo Writ of Habeas Data
Involves the right to life, liberty and Involves the right to privacy in life,
Involves the right to liberty of and security of the aggrieved party and liberty or security of the aggrieved
rightful custody by the aggrieved party covers extralegal killings and enforced party and covers extralegal killings
disappearances and enforced disappearances
There is an actual violation of There is an actual or threatened There is an actual or threatened
aggrieved party’s right. violation of aggrieved party’s right. violation of aggrieved party’s right.
Respondent is a public official or
employee or a private individual or
entity engaged in the gathering,
Respondent is a public official or collecting or storing of data or
Respondent: may or may not be an
employee or a private individual or information regarding the person,
officer. entity. family name and correspondence of
the aggrieved party.
Who may file the petition: Who may file the petition: Who may file the petition:
Filed by the party for whose relief it is Filed by the aggrieved party or by any Filed by the aggrieved party; but in
intended or by some person on his qualified person or entity in the cases of extralegal killings and
behalf. following order: enforced disappearances, may be filed
a) any member of the immediate by:
family of the aggrieved party, i.e. a) any member of the immediate
spouse, children and parents; family of the aggrieved party, i.e.
b) any ascendant, descendant or spouse, children and parents;
collateral relative of the aggrieved b) any ascendant, descendant or
party within the fourth civil degree of collateral relative of the aggrieved
consanguinity or affinity; party within the fourth civil degree of
c) any concerned citizen, organization, consanguinity or affinity.
association or institution (right to file is
successive).
The filing of the aggrieved party

himself suspends the right to file
petition by other persons.
Upon filing of the petition by an

authorized person suspends the right
to file by others down the order.
Filed before: Filed before: Filed before:
1. RTC or any judge thereof, 1. RTC of the place where the threat 1. RTC where the petitioner or
enforceable within its territorial act or omission was committed or respondent resides, or that
jurisdiction; any of its elements occurred; which has jurisdiction over the
2. CA or any member thereof in 2. Sandiganbayan or any justice place where the data or
instances authorized by law; and thereof; information is gathered collected
3. SC or any member thereof. 3. CA or any justice thereof; and or stored, at the option of
4. SC or any justice thereof. petitioner
Contents of the signed verified 2. SC, CA or Sandiganbayan
petitions: Contents of the signed and verified when the action concerns public
petition: data files or government offices.
1. The fact that the person in whose 1. Petitioner’s circumstances.
behalf the petition is filed is 2. Respondent’s circumstances Contents of the signed and verified


imprisoned or restrained of his liberty; 3. The right violated or threatened to petition:
be violated details of the violation or 1. Petitioner’s circumstances.
2.The detaining officer or private threat. 2. Respondent’s circumstances.
individual, if unknown or uncertain, 4. Investigations conducted 3. Location of the file or database and
such officer or person maybe 5. Actions and recourses taken by the the person or entity having custody,
described by an assumed petitioner in ascertaining the possession or control.
appellation; whereabouts of the aggrieved party. 4. Actions and recourses taken by the
6. Relief prayed for which may include petitioner to secure the data or
3.The place where the person a general prayer for other just and information.
deprived of his liberty is imprisoned equitable reliefs. 5. Update, rectification, suppression or
or detained; and destruction of the file or database or
the enjoinment of the threat.
4.A copy of the commitment or cause 6. General prayer to other just and
of detention of such person, if it can equitable reliefs.
be procured without impairing the
efficiency of the remedy, or the fact
that the imprisonment or detention
is without any legal authority.
If granted by SC or CA or any
member of such courts, it is
enforceable anywhere in the The writ shall be enforceable The writ shall be enforceable
Philippines; if granted by the RTC or a anywhere in the Philippines anywherein the Philippines regardless
regardless of who issued the same. of who issued the same.
judge thereof, it is enforceable only
within his judicial district.
If issued by the RTC or any judge If issued by the RTC or any judge
thereof, it is returnable before such thereof, it shall be returnable before
court or judge. such court or judge.
If issued by the CA or the
If issued by the Sandiganbayan or Sandiganbayan or any of its
the CA or any of their justices, it justices, it may be returnable before
may be returnable before such court such court or any justice thereof, or to
or any justice thereof, or to any RTC any RTC of the place where the
of the place where the threat, act or petitioner or respondent resides or that
omission was committed or any of its which has jurisdiction over the place
elements occurred. where the data or information is
If granted by the SC or CA or any gathered, collected or stored.
member of such courts, it may be If issued by the SC or any of its If issued by the SC or any of its
made returnable before the court or justices, it may be returnable before justices, it may be returnable before
any member thereof or before an RTC such Court or any justice thereof, or such Court or any justice thereof, or
or any judge thereof. the Sandiganbayan or CA or any of before the CA or the Sandiganbayan
If granted by the RTC or a judge their justices, or to any RTC of the or any of its justices, or to any RTC of
thereof, it is returnable before himself. place where the threat, act or the place where the petitioner or
omission was committed or any of its respondent resides or that which has
elements occurred. jurisdiction over the place where the
data or information is gathered,
The writ shall be immediately issued collected or stored.
upon filing of a valid petition
substantial in form and content. The writ shall be immediately issued
upon filing of a valid petition
The clerk of court shall issue the writ substantial in form and content.
under the seal of the court. Except in
emergency cases which may be The clerk of court shall issue the writ
issued by the judge or justice. under the seal of the court; shall be


served by the clerk within 3 days from
The writ shall set the date and time for issuance. In case of emergency, the
summary hearing within 7 days from writ maybe issued by a justice or
the issuance of the writ. judge.
The writ shall set the date and time for

summary hearing within 10 days from
issuance.
Only an indigent petitioner is not

Petitioner is exempted from payment
required to pay docket and other
of docket and other lawful fees.
lawful fees.
Summary hearing shall be conducted Summary hearing shall be conducted
Date and time of hearing is specified not later than 7 days from the date of not later than 10 work days from the
in the writ. the issuance of the writ. date of the issuance of the writ.
Served upon the respondent Served upon the respondent
personally, but if it cannot be served personally, but if it cannot be served
Served to the person to whom it is
personally, the rules on substituted personally, the rules on substituted
directed; and if not found or has not service shall apply. service shall apply.
the prisoner in his custody, to the
other person having or exercising A copy is served on the respondent A copy is served on the respondent
such custody. and the sheriff retains a copy on which and the sheriff retains a copy on which
to make a return of service. to make a return of service.
If the person to whom the writ is
directed neglects or refuses to obey or
make return of the same, or makes a
false return thereof, or who, upon
demand made by or on behalf of the
prisoner, refuses to deliver to the
If the respondent refuses to make a If the respondent makes a false return
person demanding, within 6 hours
return or makes a false return, he may or refuses to make a return, he may
after the demand therefore, a true
be punished with imprisonment or fine be punished with imprisonment or fine
copy of the warrant or order of
for committing contempt without for committing contempt without
commitment, he shall forfeit to the prejudice to other disciplinary actions. prejudice to other disciplinary actions..
party aggrieved the sum of Php 1,000
and may be punished for contempt.
The person who makes the return is
The person who files the return is the The person who files the return is the
the officer by whom the prisoner is
respondent. The return must be filed respondent. The return must be filed
imprisoned or the person in whose
within 5 days from the service of the within 5 days from the service of the
custody the prisoner is found.
writ. writ.
Contents of the Return: Contents of the Return: Contents of the Return:
1. Whether or not he has custody over 4. Lawful defenses available to 1. Lawful defenses available.
the aggrieved party; the respondent. 2. If the respondent has possession or
2. The authority and the true and 5. The actions and steps taken by control of the data or information:
whole cause of detention; the petitioner in determining the a. He must disclose the data or
3. if the party detained cannot be whereabouts of the aggrieved information, its nature, and the
produced, he must state the sickness party and the identity of the purpose of his collection.
or infirmity; violator. b. The actions and steps taken in
4. if he has transferred the custody, he 6. All information relevant to the order to secure the confidentiality of
shall state whom the person was case. the data or information.
transferred, time, cause and authority 7. Actions taken by the public c. The accuracy of the data or
of such transfer. official: information in his possession or


a. In verifying the identity of control.
the aggrieved party. 3. All relevant allegations.
b. Recovery and preservation
of the evidence for the A general denial of the allegations in
prosecution. the petition shall not be allowed.
c. Determine the
circumstances surrounding
the death of
disappearance.
d. Identify and apprehend the
persons involved.
e. Bring the suspected
offender to the court.
A general denial of the allegations in

the petition shall not be allowed.
Effects of failure to file a return:
Effects of failure to file a return:
The Court, justice or judge shall
proceed to hear the petition ex parte,
If the respondent fails to file a return,
granting the petitioner such relief as
the court, justice or judge shall
the petition may warrant unless the
proceed to hear the petition ex parte.
court in its discretion requires
petitioner to submit evidence.
There are prohibited pleadings and There are prohibited pleadings and
motions. motions.
Sec. 12
1. Unless for good cause shown, the
hearing is adjourned, in which
event the court shall make an Sec. 14. The court, justice or judge
order for the safe keeping of the may grant interim reliefs, to wit:
person imprisoned or restrained temporary protection order, inspection NOT applicable.
as the nature of the case order, production order and witness
requires; protection order.
2. The court or judge must be
satisfied that the person’s illness
is so grave that he cannot be
produced without any danger.
There is no presumption that official
duty has been regularly performed.
Judgment shall be rendered within Judgment shall be rendered within
10 days from the time the petition is 10 days from the time the petition is
submitted for decision. submitted for decision.
The writ and reliefs prayed for must be The writ and reliefs prayed for must be
granted if the allegations are proven granted if the allegations are proven
by substantial evidence. Otherwise, it by substantial evidence. Otherwise, it
must be denied. must be denied.
Judgment shall be enforced within 5
working days.


Period of appeal is within 48 hours
from notice of the judgment or final Period of appeal shall be 5 working Period of appeal shall be 5 working
order appealed from. The appeal shall days from the date of notice of the days from the date of notice of the
be filed to the Supreme Court under adverse judgment. Filed with SC thru judgment or final order. Filed with SC
Rule 45. (Tan Chin Hui v. Rodriguez, RULE 45. Given the same priority as thru RULE 45. Given the same priority
G.R. No. 137571, September 21, that of Habeas Corpus. as that of Habeas Corpus.
2000).
May be consolidated with a criminal May be consolidated with a criminal
action filed subsequent to the petition. action filed subsequent to the petition.
Quantum of proof is clear and Quantum of proof is substantial
convincing evidence. evidence.
If the petition cannot proceed for a
valid cause, it shall not be dismissed
by the court, but it must be archived.
After 2 years from notice of the

archiving of the petition, it shall be
dismissed with prejudice upon failure
to prosecute.
Substantive rights cannot be Substantive rights cannot be
increased, diminished or modified. increased, diminished or modified.
The Rules of Court applies The Rules of Court applies
suppletorily. suppletorily.

COMPARATIVE CHART: RULE 103, RULE 108 AND R.A. N O. 9048
Rule 103 Rule 108 R.A. No. 9048

Cancellation or Correction of
Entries in the Civil Registry
Substantial change of name (Substantial and adversary, if Clerical Error Act
change affects the civil status,
citizenship or nationality; Summary,
if it involves mere clerical errors.)
Change or corrections in the civil
registry entries (substantial
corrections):
Births, marriages, deaths, legal
separation, judgments of
annulments of marriage, judgments Change of first name and nickname and
Change of full name declaring void a marriage, civil registry entries (only typographical
legitimations, adoptions, or clerical errors)
acknowledgment of natural
children, naturalizations, election,
loss or recovery of citizenship, civil
interdiction, judicial determination
of filiation.
Who may file
Any person interested in any act, Any person having direct and personal
A person desiring to change his event, order or decree concerning interest in the correction of a clerical or
name files a petition. the civil status of persons which typographical error in an entry and/or
has been recorded in the civil change of first name or nick name files a
register. verified petition in a form of an affidavit.
Venue
1. Local civil registry office of the city or
municipality where the record being
RTC of the province in which the sought to be corrected or changed is
petitioner resides for 3 years prior RTC of the city or province where kept;
to the filing, or, in the City of the corresponding civil registry is 2. Local civil registrar of the place where
Manila, to the Juvenile and located the interested party is presently
Domestic Relations Court residing or domiciled (transient
petitioner);
3. Philippine consulates
Contents of Petition
a) That the petitioner has been a 1. Facts necessary to establish the
bona fide resident of the merits of the petition;
province where the petition is 2. Particular erroneous entry or entries,
filed for at least 3 years prior which are sought to be corrected
to the date of filing; and/or the change sought to be made.
b) The cause for which the
change of the petitioner’s The petition shall be supported with the
name is sought; following documents:
c) The name asked for; a) Certified true machine copy of the
d) All names by which petitioner certificate or of the page of the

is known. registry book containing the entry or

entries sought to be corrected or
changed;
b) At least 2 public or private documents
showing the correct entry or entries
upon which the correction or change
shall be based; and
c) Other documents which the petitioner
or the city or municipal civil registrar
or the consul general may consider
relevant and necessary for the
approval of the petition.
Grounds
a) Name is ridiculous, tainted with
dishonor or extremely difficult
to write or pronounce;
b) Consequence of change of a) First name or nickname is ridiculous,
status; tainted with dishonor or extremely
c) Necessity to avoid confusion; difficult to write and pronounce;
d) Having continuously used and Upon good and valid grounds, the b) The new first name or nickname has
been known since childhood entries in the civil registry may be been habitually and continuously used
by a Filipino name, unaware of cancelled and corrected. by the petitioner and he has been
his/her alien parentage; publicly known by that first name or
e) A sincere desire to adopt a nickname in the community; or
Filipino name to erase signs of c) To avoid confusion.
former alienage all in good
faith and without prejudicing
anybody.
Kind of Proceeding
Summary proceeding
This can be converted to an

Judicial Administrative
adversarial proceeding if there
are substantial changes and
affect the status of an individual
What to File
Verified petition for the
Signed and verified petition cancellation or correction of any Verified petition in the form of Affidavit
entry
Notice, Publication and Posting
At least once a week for three At least once a week for three At least once a week for 2 consecutive
consecutive weeks in a consecutive weeks in a weeks (publish the whole affidavit)
newspaper of general circulation newspaper of general circulation
(notice of hearing) (notice of hearing) Duty of the civil registrar or Consul to post
the petition in a conspicuous place for 10
No posting No posting consecutive days
Service of judgment shall be upon Service of judgment shall be Transmittal of decision to civil registrar
the civil register concerned. upon the civil register concerned. concerned.
Participation by the Government

Solicitor General or the proper

provincial or city fiscal shall appear
on behalf of the Republic. Civil Registrar is an indispensable
Civil Registrar or Consul
party.
Civil Registrar is not a party to the
proceeding.
Appeal
Court of Appeals Court of Appeals Civil Registrar General (head of NCSO)


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REMEDIAL LAW SPECIAL PROCEEDINGS

RULE 72 Bar Questions, Cases, Updated Laws and Rules, 2011

EXECUTIVE COMMITTEE SUBJECT COMMITTEE MEMBERS

180 SAN BEDA COLLEGE OF LAW

Family Court) Declaration of absence and appointment of their

SAN BEDA COLLEGE OF LAW 181

SETTLEMENT OF ESTATE OF RULE 73

RULES 73-90 SECTION 1. WHERE ESTATE OF DECEASED

The judicial settlement of a decedent’s estate is a

182 SAN BEDA COLLEGE OF LAW

Two kinds of settlement 5. The validity of a waiver of hereditary rights;

The RTC acting in its general jurisdiction is devoid of SECTION 3. PROCESS

SAN BEDA COLLEGE OF LAW 183

SECTION 1. EXTRAJUDICIAL SETTLEMENT BY

Note: The bond is required only when personalty is

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SAN BEDA COLLEGE OF LAW 185

thereby, and contemplates a notice that has been sent out

186 SAN BEDA COLLEGE OF LAW

SECTION 1. ALLOWANCE NECESSARY.

SAN BEDA COLLEGE OF LAW 187

2. Contested Will Facts which should be proved in order that a lost or

SAN BEDA COLLEGE OF LAW 189

Substantial Compliance Rule

190 SAN BEDA COLLEGE OF LAW

SAN BEDA COLLEGE OF LAW 191

192 SAN BEDA COLLEGE OF LAW

RULE 79 Grounds for Opposition:

SAN BEDA COLLEGE OF LAW 193

Appointed when there is

194 SAN BEDA COLLEGE OF LAW

When bond is filed: Before an executor or administrator RULE 82

SAN BEDA COLLEGE OF LAW 195

must take cognizance of the settlement of the intestate

Other Valid Grounds for Removal of an Administrator:

196 SAN BEDA COLLEGE OF LAW

SAN BEDA COLLEGE OF LAW 197

but also the parties interested therein, that they are

SECTION 7. WHAT EXPENSES AND FEES ALLOWED

198 SAN BEDA COLLEGE OF LAW

his trust, his attorney’s fees may be allowed as expenses

SECTION 11. SURETY ON BOND MAY BE PARTY TO When to file claims

SAN BEDA COLLEGE OF LAW 199

Belated Claims If the claim is secured; apply Sec. 7 of this Rule.

200 SAN BEDA COLLEGE OF LAW

SAN BEDA COLLEGE OF LAW 201

202 SAN BEDA COLLEGE OF LAW

SECTION 4. EXECUTOR OR ADMINISTRATOR MAY SECTION 9. PROPERTY FRAUDULENTLY CONVEYED

SECTION 8. EMBEZZLEMENT BEFORE LETTERS

SAN BEDA COLLEGE OF LAW 203

204 SAN BEDA COLLEGE OF LAW

Principle of reciprocity: The benefits of Sections 9 and

SAN BEDA COLLEGE OF LAW 205

Conditions of bond: To pay the debts, expenses of Liquidation

SECTION 4. WHEN COURT MAY AUTHORIZE SALE

206 SAN BEDA COLLEGE OF LAW

Declaration of Heirs reason of circumstances beyond his control or through

SAN BEDA COLLEGE OF LAW 207

Requisites for filing of petition: Rationale: To encourage would-be claimants to be

208 SAN BEDA COLLEGE OF LAW

GENERAL GUARDIANS AND B. According to constitution:

Guardianship Courts with jurisdiction

SAN BEDA COLLEGE OF LAW 209