Special Proceedings RSE

SPECIAL PROCEEDINGS
Atty. Ramon S. Esguerra

Special Proceeding and Ordinary
Civil Action, Distinguished
• A special proceeding is a remedy by which a party seeks

to establish a status, a right, or a particular fact. It is
distinguished from an ordinary civil action where a
party sues another for the enforcement or protection of a
right, or the prevention or redress of a wrong (Ching v.
Rodriguez, G.R. No. 192828, 28 November 2011).
Nature of Special Proceedings
• Special proceedings are initially non-

adversarial in nature.
• However, in the course of the proceedings,
there may be oppositors.
Subject Matter
Rules 73-75
Rules 76-81 Settlement of Estate of Deceased Persons
Rules 82-86
Rules 87-90
Rule 91 Escheat
A.M. No. 03-02-05-SC Guardianship of Minors
Rules 92-97 Guardianship of Incompetents
A.M. No. 02-06-02-SC Adoption and Custody of Minors
Rule 98 Trustees
Rule 101 Hospitalization of Insane Persons
Rule 102 Habeas Corpus
Rule 103 Change of Name
Voluntary Dissolution of Corporations
Rule 104
(deemed repealed by the Corporation Code)
Judicial Approval of Voluntary Recognition of Minor Natural
Rule 105
Children
Constitution of Family Home
Rule 106
(deemed repealed by the Family Code)
Rule 107 Absentees
Rule 108 Cancellation or Correction of Entries
Rule 109 Appeals in Special Proceedings
Special Proceedings Under
Various Laws
1. Summary proceedings under the Family Code (Family
Code, Title XI)
2. Actions mentioned in the Family Courts Act of 1997

(R.A. No. 8369)
- Declaration of absolute nullity of void marriages and
annulment of voidable marriages
- Legal separation
- Provisional orders on support, custody of minor
children, and administration of common property
- Violence against women and their children and
protection orders
Various Laws
3. Proceedings under:
• Child & Youth Welfare Code (P.D. No. 1083)
• Child Abuse Act (R.A. No. 7610)
• Child Employment Act (R.A. No. 7658)
- declaration of status as abandoned, dependent or
neglected children
- voluntary or involuntary commitment of
children
- suspension, termination, or restoration of
parental authority
Various Laws
4. Domestic Adoption (Domestic Adoption Act of
1998) and Inter-Country Adoption (Inter-Country
Adoption Act of 1995)
5. Petition for Corporate Rehabilitation
(A.M. No. 00-8-10-SC)
6. Petition for Writ of Amparo
(A.M. No. 07-9-12-SC)
7. Petition for Writ of Habeas Data
(A. M. No. 08-1-16-SC)
8. Arbitration (R.A. No. 9285)
Rules in Civil Actions Applicable To
Special Proceedings
• In the absence of special rules, the rules

provided for in ordinary actions shall be, as far
as practicable, applicable to special proceedings
(Rules of Court, Rule 72, Sec. 2).
The following rules are applicable to
special proceedings:
1. Rule 17 of the Rules of Court governing dismissal of

actions by plaintiff in civil actions;
2. Rule 33 regarding judgment on demurrer to

evidence (Matute v. Court of Appeals, 26 SCRA 768
[1969]).
The following rules are applicable to
special proceedings:
3. Rules regarding:
• Preparation, filing, and service of applications, motions, and other
papers
• Omnibus motions (Rule 9, Sec. 1)
• Subpoena (Rule 21)
• Computation of time (Rule 22)
• Motion for new trial (Rule 37)
• Discovery (Rules 23-28)
• Trial before commissioners (Rule 33)
• Procedure of appeal (Fernandez v. Maravilla, 10 SCRA 589
[1964])
• Rule 33 regarding judgment on demurrer to evidence (Matute v.
Court of Appeals, 26 SCRA 768 [1969]).
SETTLEMENT OF ESTATE OF
DECEASED PERSONS, VENUE AND
PROCESS
(Rules of Court, Rule 73)
Modes of Settlement of the
Estate of a Deceased Person
1. Extrajudicial Settlement of Estate (Rule 74, Sec. 1);
2. Summary Settlement of Estate of Small Value (Rule

74,Sec. 2); and
3. Judicial Settlement through letters testamentary or

letters of administration with or without a will annexed
(Rules 73, and 75-90).
Which Court Has Jurisdiction
• The determination of which court exercises jurisdiction

over matters of probate depends upon the gross value of
the estate of the decedent. Hence, the Municipal Trial
Court or the Regional Trial Court has jurisdiction. Rule
73, Sec. 1 is deemed amended by B.P. 129, as amended
by RA 7691 (Lim v. Court of Appeals, G.R. No. 125715,
24 January 2000).
Venue in Judicial Settlement Of
Estate (Rule 73)
• If the decedent is an inhabitant of the Philippines at
the time of his death, whether a citizen or an alien, his
will shall be proved, or letters of administration
granted, and his estate settled, in the court of the
province in which he resides at the time of his death
(Rule 73, Sec. 1).
• If the decedent is an inhabitant of a foreign country,

the estate shall be settled in the court of any province
in which he had estate (Rule 73, Sec. 1).
Estate (Rule 73)
• The term “resides” refer to “actual or physical” residence, as
distinguished from “legal residence” or “domicile.”
 There is a distinction between “residence” for purposes of election
law and “residence” for purposes of fixing the venue of actions. In
election cases, “residence” and “domicile” are treated as
synonymous terms, that is, the fixed permanent residence to which
when absent, one has the intention of returning. However, for
purposes of fixing venue under the Rules of Court, the “residence“
of a person is his personal, actual or physical habitation, or actual
residence or place of abode, which may not necessarily be his legal
residence or domicile provided he resides therein with continuity
and consistency (San Luis v. San Luis, G.R. No. 133743, 6
February 2007).
Estate (Rule 73)
• Venue, not Jurisdiction
 Rule 73, Sec 1 prescribing court where decedent’s

estate shall be settled – (a) place of residence or (b)
where his estate is located, relates to venue and not
to jurisdiction (Uriarte v. CFI, L-21938-39, 29 May
1970).
Estate (Rule 73)
• Exclusionary Rule (Rule 73, Sec. 1)
• The court first taking cognizance of the settlement of the
estate of the decedent shall exercise jurisdiction to the
exclusion of all other courts.
• The probate court acquires jurisdiction from the moment

the petition for the settlement of estate is filed with said
court. It cannot be divested of such jurisdiction by the
subsequent acts of the parties by entering into
extrajudicial partition of the estate (Sandoval v. Santiago,
L-1723, 30 May 1949).
Estate (Rule 73)
• Testate proceedings take precedence over intestate
proceedings for the same estate.
 Robert v. Leonidas (G.R. No. L-55509, 27 April 27 1984)

Intestate proceeding was instituted in Court of First
Instance of Manila Branch 20, while testate (reprobate)
proceeding was instituted in Court of First Instance of
Manila Branch 38.
Priority is given to second branch of same court (CFI
Manila). Probate of the will is mandatory. It is
anomalous that the estate of a person who died testate
should be settled in intestate proceedings.
Estate (Rule 73)
• Testate proceedings take precedence over intestate proceedings
for the same estate.
 Uriarte v. Court of First Instance of Negros Occ. (G.R. Nos. L-
21938-39, 29 October 1970)
Intestate proceeding was instituted in Negros Court.
Thereafter, testate proceeding was instituted in Manila Court.
Priority is given to first court. Petitioner in Manila Court
should have submitted the will for probate to Negros court,
either in separate special proceeding or motion. Testate
proceeding takes precedence over intestate proceeding. If in the
course of intestate proceeding, it is found that decedent left a
will, proceeding for probate of will should replace intestate
proceeding.
Estate (Rule 73)
 Cuenco vs. Court of Appeals (L-24742, 26 October 1973)
Intestate proceeding was instituted in Cebu Court. Testate
proceeding was instituted in Quezon City Court.
Priority is given to second court. The first court, upon
learning that petition for probate has been presented in
another court, may decline to take cognizance of and hold in
abeyance the petition before it and instead defer to second
court. If the will is admitted to probate, it will definitely
decline to take cognizance.
Estate (Rule 73)
 Uriate vis-à-vis Cuenco Ruling

In Uriate, there was showing that petitioner in probate
proceeding knew before filing of petition in Manila that there
was already intestate proceeding in Negros.
Estate (Rule 73)
• The jurisdiction assumed by a court, so far as it
depends on the place of residence of the decedent, or of
the location of his estate, shall not be contested in a
suit or proceeding, except:
1. in an appeal from that court, in the original case;
or
2. when the want of jurisdiction appears on the
record (Rule 73, Sec. 1).
Estate (Rule 73)
• Where estate settled upon dissolution of marriage
(Rule 73, Sec 2)
 When the marriage is dissolved by the death of the
husband or wife, the community property shall be
inventoried, administered, and liquidated, and the debts
thereof paid, in the testate or intestate proceedings of the
deceased spouse (Rule 73, Sec 2).
 If both spouses have died, the conjugal partnership shall

be liquidated in the testate or intestate proceedings of
either (Rule 73, Sec 2).
Estate (Rule 73)
• Where estate settled upon dissolution of marriage (Rule
73, Sec 2)
 A creditor cannot sue surviving spouse of a decedent in

an ordinary proceeding for collection of sum of money
chargeable against the conjugal property. The proper
remedy is to file a claim in the settlement of estate of the
decedent. This is because upon the death of one spouse,
powers of administration of surviving spouse ceases and
is passed to the administrator appointed by probate court
in the settlement proceedings (Alipio v. Court of Appeals,
341 SCRA 441 [2000]).
Extent of Jurisdiction of Probate
Court
• The probate court has limited jurisdiction.
 The probate court cannot adjudicate or determine title to
properties claimed to be a part of the estate and equally
claimed as belonging to outside parties.
 It can only determine whether or not they should be

included in the inventory or list of properties to be
administered by the administrator.
 Probate court can only pass upon questions of title

provisionally for the purpose of determining whether a
certain property should not be included in the inventory.
Extent of Jurisdiction of Probate
Court
• Parties have to resort to an ordinary action for final
determination of conflicting claims of title.
 Exceptions:
1. Where interested parties are all heirs and rights of

third parties are not impaired, probate court can
decide question of ownership. (Coco v.
Pangilinan, 81 SCRA 278 [1987]).
2. Probate court can decide question of ownership

if there is consent of all the parties, provided
there is no prejudice to third persons (Trinidad v.
Powers and Duties of Probate Court
• The probate court has jurisdiction to:
1. determine the heirs – separate action for declaration
of heirs not proper (Solivio v. Court of Appeals, 182
SCRA 119 [1990]); and
2. distribute the estate of the decedent.
• In the exercise of probate jurisdiction, the court may issue

warrants and processes necessary to compel the attendance
of witnesses or to carry into effect its orders and judgments,
and all other powers granted to them by law (Rule 73, Sec.
3).
SUMMARY SETTLEMENT OF
ESTATES
(Rule 74)
Extrajudicial Settlement by Agreement
Between Heirs, When Allowed
(Rule 74, Sec. 1)
• Rationale for the Rule on Extrajudicial Settlement

 When a person dies without having obligations to
be paid, his heirs are not bound to submit property
for judicial administration, which is always long
and costly (Utulo v. Pasion 66 Phil. 302 [1938]).
Between Heirs
• Substantive requirements:
1. The decedent dies intestate;
2. The decedent has no outstanding debts at the time of
settlement; and
(It is presumed that decedent left no debts if no
creditor filed petition for letters of administration
within 2 years after death of decedent.)
3. The heirs are all of legal age or the minors are
represented by their judicial or legal representatives
duly authorized for the purpose.
Between Heirs
• Procedural requisites:
1. The settlement is made in public instrument duly filed
with the appropriate Registry of Deeds;
2. Publication in newspaper of general circulation in the
province once a week for 3 consecutive weeks; and
3. Bond equivalent to value of personal property posted
with Register of Deeds.
• A bond is required only when personalty is
involved in the extrajudicial settlement. Real estate
is subject to lien in favor of creditors, heirs or
other persons for 2 years from distribution of
estate, notwithstanding any transfer of real estate
that may have been made (Rule 74, Sec. 4).
Between Heirs
• Rules:
 If several heirs disagree, an ordinary action for

partition must be filed.
 If only one heir, an affidavit of self-adjudication

must be filed.
Between Heirs
• Filing of Extrajudicial Settlement with the
Registry of Deeds is Required – whether by
public instrument, affidavit, and stipulation in
pending action for partition.
 Lack of registration of extrajudicial settlement

does not affect its validity when there are no
creditors, or when rights of creditors are not
involved (Vda. De Reyes v. CA, 199 SCRA 646
[1991]).
Between Heirs
• Despite its publication, extrajudicial

settlement is not binding on any person who
has not participated therein or who had no
notice thereof (Rule 74, Sec. 1, last par.;
Sampilo v. Court of Appeals, 101 Phil. 71
[1958]).
Between Heirs
• Extra Judicial Settlement – on whom binding
 The procedure outlined in Section 1 of Rule 74 is an
ex parte proceeding. The rule plainly states, however,
that persons who do not participate or had no notice of
an extrajudicial settlement will not be bound thereby.
The publication of the settlement does not constitute
constructive notice to the heirs who had no knowledge
or did not take part in it because the same was notice
after the fact of execution (Cua v. Vargas, G.R. No.
156536, 31 October 2006).
Between Heirs
• Extra Judicial Settlement – on whom binding

 The publication of the settlement does not constitute
constructive notice to the heirs who had no knowledge
or did not take part in it because the same was notice
after the fact of execution. The requirement of
publication is geared for the protection of creditors
and was never intended to deprive heirs of their lawful
participation in the decedent’s estate (Spouses Tiro v.
Heirs of Cuyos, G.R. No. 161220, 30 July 2008).
Two-year Prescriptive Period
• Action to annul deed of extrajudicial
settlement:
Section 4, Rule 74 provides a two year
prescriptive period (1) to persons who
participated or taken part or had notice of
extrajudicial partition, and (2) when the
provisions of Sec. 1 of Rule 74 have been
strictly complied with – that all persons or heirs
of the decedent have taken part in the
extrajudicial settlement or are represented by
themselves or through guardians (Pedrosa v.
Summary Settlement of Estates of
Small Value: When Allowed
• Whenever the gross value of the estate of a deceased

person, whether he died testate or intestate, does not
exceed ten thousand pesos, the court may proceed
summarily, without the appointment of an executor or
administrator, and without delay, to grant, if proper,
allowance of the will, if any there be, to determine who
are the persons legally entitled to participate in the estate,
and to apportion and divide it among them after the
payment of such debts of the estate as the court shall then
find to be due (Rule 74, Sec. 2).
Remedies of Aggrieved Parties After
Extrajudicial Settlement of Estate
• The remedy of an heir who did not participate in, or had
no knowledge of the extrajudicial partition is to file an
action for reconveyance (Marquez v. Court of Appeals,
300 SCRA 653 [1998]).
• The prescriptive period for non-participants is 10

years. This is because an action for reconveyance based
on implied or constructive trust, being an obligation
created by law, prescribes in 10 years (Civil Code, Art.
1144, par. 2).
• The period starts from the issuance of title over the property
(Marquez v. Court of Appeals, 300 SCRA 653 [1998]).
Remedies of Aggrieved Parties After
Extrajudicial Settlement of Estate
• Exception to prescription of actions:

The 10 year bar-rule is not applicable when the plaintiff,
the legal owner, and not the defendant registered owner,
is in possession of the land to be reconveyed. Said
action, when based on fraud, is imprescriptible as long as
the land has not passed to an innocent purchaser for
value (Heirs of Saludares v. Court of Appeals, 420 SCRA
54 [2004]).
PRODUCTION AND PROBATE OF
WILL
(Rule 75)
Conclusiveness as to Due Execution
• Art. 783 of the New Civil Code defines a will as an act whereby
a person is permitted with the formalities prescribed by law to
control to a certain degree the disposition of his estate to take
effect after his death.
• Petitioner should realize that the allowance of her husband’s will

is conclusive only as to its due execution. The authority of the
probate court is limited to ascertaining whether the testator,
being of sound mind freely executed the will in accordance with
the formalities prescribed by law. Thus, petitioner’s claim of title
to the properties forming part of her husband’s estate should be
settled in an ordinary action before the regular courts (Nittscher
v. Nittscher, G.R. No. 160530, 20 November 2007).
Probate of will is mandatory.
• The law enjoins probate of a will and public policy requires it.
Unless a will is probated and notice is given to the whole world,
the right of a person to dispose his property by will may be
rendered nugatory (Maninang v. Court of Appeals, 114 SCRA
478 [1982]).
• The presentation of a will cannot be dispensed with on the

ground of estoppel because public policy requires that a will
should be probated (Fernandez v. Dimaguiba, 21 SCRA 428
[1967]).
Nature of Probate Proceeding
• General Rule: Probate court’s authority is limited
only to intrinsic validity of the will, i.e.:
1. due execution – voluntariness
2. testator’s testamentary capacity – sound mind
3. compliance with formal requisites or solemnities

Nature of Probate Proceeding
• Exceptions:
 In exceptional instances, the court is not powerless to pass
upon certain provisions of will which it may declare invalid
even as it upholds intrinsic validity of will (Ajero v. Court of
Appeals, 236 SCRA 488 [1994]).
 The probate court may only disregard passing on the extrinsic
validity of a will where its intrinsic validity is apparent on
face of will (Maninang v. Court of Appeals, 114 SCRA 478
[1982]).
 In Nuguid, the court ruled that the will was intrinsically
invalid as it completely preterited the parents of the testator.
Who May Petition For Probate;
Persons Entitled To Notice
• Who may petition (Rule 76, Sec. 1)

1. Executor;
2. Legatee, who need not be a relative of the decedent;
3. Devisee, who need not be a relative of the decedent;
4. Other interested persons, who may be an heir or a
creditor; or
5. Testator, during his lifetime.
• When petition may be filed (Rule 76, Sec. 1)

 It may be filed at any time after death of the testator.
It is not subject to a bar by statute of limitations and
does not prescribe, since it is required by public
policy.
• Jurisdiction, How Acquired
 Attaching a mere copy of will is sufficient. The annexing of
the original copy of a will to the petition is not a
jurisdictional requirement.
 Delivery of the will is sufficient even if no petition is filed.

Under Rule 76, Sec. 3, “when a will is delivered to the
court,” the court could motu proprio take steps to fix time
and place for proving the will and issue the corresponding
notices.
• Heirs, devisees, legatees and executor must be notified
by mail or personally (Rule 76, Sec. 4).
 The court shall also cause copies of the notice of the time and
place fixed for proving the will to be addressed to the
designated or other known heirs, legatees, and devisees of the
testator resident in the Philippines at their places of residence,
and deposited in the post office with the postage thereon
prepaid at least twenty (20) days before the hearing.
 A copy of the notice must be mailed to the executor.
 Personal service of copies of the notice at least (10) days
before the day of hearing shall be equivalent to mailing.
ALLOWANCE OR DISALLOWANCE
OF WILL
(Rule 76)
Notice and hearing; Publication
1. After will is delivered to the court, a petition for
allowance of will is filed in court having jurisdiction.
The court shall –
• fix time and place for proving will – when all
concerned may appear to contest allowance thereof;
• cause notice of such time and place to be published
three (3) weeks successively in newspaper of
general circulation
2. No newspaper publication is necessary where the
petition for probate was filed by the testator himself
(Rule 76, Sec. 12)
Probate of Will is In Rem
• Notice by publication as prerequisite to

allowance of will is constructive notice to the
whole world.
• When probate is granted, the judgment is

binding upon everybody, even against the state.
Probate of Will is Jurisdictional
• Without publication of petition, proceedings for

settlement of estate is void and should be
annulled.
Contents of Petition for Allowance of
Will (Rule 76, Sec. 2)
• A petition for the allowance of a will must show, so far as known to
the petitioner:
1. The jurisdictional facts;
2. The names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent;
3. The probable value and character of the property of the
estate;
4. The name of the person for whom letters are prayed; and
5. If the will has not been delivered to the court, the name of
the person having custody of it.
• However, no defect in the petition shall render void the allowance
of the will, or the issuance of letters testamentary or of
administration where the will is annexed to the petition.
Grounds for Disallowing a Will
• The will shall be disallowed in any of the following cases:
1. It was not executed and attested as required by law;
2. If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
3. If it was executed under duress, or under the influence
of fear, or threats;
4. If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some
other person for his benefit;
5. If the signature of the testator was procured by fraud or
trick, and he did not intend that the instrument should
be his will at the time of fixing his signature thereto.
Reprobate
• Requisites before a will proved abroad would be allowed
in the Philippines:
Where a will has been probated in a foreign country, it may
be reprobated in the Philippines. The following matters have
to be proven during reprobate proceedings:
1. The due execution of the will in accordance with the
foreign laws;
2. The testator has his domicile in the foreign country
and not in the Philippines;
3. The will has been admitted to probate is such country;
and
4. The laws of a foreign country on procedure and
allowance of wills (Rule 77).
Reprobate
• Effects of probate:
1. The will shall be treated as if originally proved and
allowed in Philippine courts (Rule 77, Sec. 3);
2. Letters testamentary or administration with a will
annexed shall extend to all estates of the testator in the
Philippines; and
3. After payment of just debts and expenses of
administration, the residue of the estate shall be disposed
of as provided by law in cases of estates in the
Philippines belonging to persons who are inhabitants of
another state or country (Rule 77, Sec. 4).
LETTERS TESTAMENTARY AND
OF ADMINISTRATION
• Letters Testamentary – the appointment issued by a
probate court, after the will has been admitted to probate,
to the executor named in the will to administer the estate
of the deceased testator, provided the executor named in
the will is competent, accepts the trust and gives a bond
(Rule 78, Sec. 4).
• Letters of Administration –the appointment issued by a

court to a competent person to administer the estate of a
deceased who died without a will provided such person
accepts the trust and gives a bond (Rule 78, Sec.6).
When and To Whom Letters of Administration
are Granted / Order of Preference
• If no executor is named in the will, or the executor or
executors are incompetent, refuse the trust, or fail to give
bond, or a person dies intestate, administration shall be
granted:
1. To the surviving husband or wife, as the case may be, or

next of kin, or to such person as such surviving husband
or wife, or next of kin, requests to have appointed;
2. To the principal creditors; or
3. If there is no such creditor competent and willing to
serve, it may be granted to such other person as the court
may select (Rule 78, Sec. 6).
Opposition To The Issuance Of Letters
Testamentary; Simultaneous Filing Of
Petition For Administration (Rule 79)
• Any person interested in a will may state in writing
the grounds why letters testamentary should not issue
to the persons named therein as executors, or any of
them, and the court, after hearing upon notice, shall
pass upon the sufficiency of such grounds (Rule 79,
Sec. 1).
• A petition may, at the time, be filed for letters of
administration with the will annexed (Rule 79, Sec.
2).
Powers and Duties of Executors and
Administrators; Restrictions on the
Powers
1. The executor or administrator shall at all times have access
to, and may examine and take copies of, books and
papers relating to the partnership business (Rule 84, Sec.
1).
2. An executor or administrator shall maintain in tenantable
repair the houses and other structures and fences belonging
to the estate (Rule 84, Sec. 2).
3. An executor or administrator shall have the right to the
possession and management of the real as well as the
personal estate of the deceased so long as it is necessary
for the payment of the debts and the expenses of
administration (Rule 84, Sec. 3).
Appointment of a Special Administrator
• A special administrator shall be appointed when:

1. There is delay in the grant of letters due to any
cause including appeal in the probate of the will
(Rule 80, Sec. 1);
2. The executor is a claimant of the estate he
represents, in which case the special administrator
shall have the same powers as that of a general
administrator (Rule 86, Sec. 8)
Appointment of a Special Administrator
• The powers and duties of a special administrator are:
1. To take possession and charge of the goods,
chattels, rights, credits, and estate of the deceased
and preserve the same for the executors or
administrator afterwards appointed, and for that
purpose may commence and maintain suits as
administrator (Rule 80, Sec. 2); and
2. To sell only such perishable and other property as
the court orders sold. A special administrator shall
not be liable to pay any debts of the deceased
unless so ordered by the court (Rule 80, Sec. 2).
Grounds For Removal of an
Administrator (Rule 82, Sec. 2)
• If an executor or administrator neglects to render his account
and settle the estate according to law, or to perform an order
or judgment of the court, or a duty expressly provided by
these rules, or absconds, or becomes insane, or otherwise
incapable or unsuitable to discharge the trust, the court may
remove him, or in its discretion, may permit him to resign.
• When an executor or administrator dies, resign, or is
removed, the remaining executor or administrator may
administer the trust alone, unless the court grants letters to
someone to act with him. If there is no remaining executor or
administrator, administration may be to any suitable person.
CLAIMS AGAINST THE ESTATE
(Rule 86)
Time Within Which Claims Shall Be Filed
• Time for filing claims – should be not more than 12 months nor
less than 6 months after the date of first publication of the notice
(Sec. 2).
• New period allowed (Rule, 86, Sec. 2, second sentence):

 At any time before order of distribution is entered, creditor
who failed to file his claim within the time set may move to
be allowed to file such claim. The court may, for good cause
shown, and on such terms as are just, allow such claim to be
filed within a period not exceeding one (1) month.
 One month does not commence from the expiration of the
original period for filing claims. It begins from the date of the
order of the court allowing said filing (Barredo v. Court of
Appeals, 6 SCRA 620).
Statute of Non-claims (Rule 86, Sec. 2)
• The statute of non-claims pertains to the period fixed for the
filing of claims against the estate.
 The period fixed by the probate court must not be less than
six (6) months nor more than twelve (12) months from the
date of first publication of the notice (Rule 86, Sec. 2).
 Such period once fixed by the court is mandatory. It

cannot be shortened, e.g. a period fixed within 6 months.
 The statute of non-claims supersedes the statute of

limitations. Even if the claim has not yet prescribed, it may
be barred by statute of non-claims.
Publication of Notice to Creditors (Rule
86, Sec. 3)
• Immediately after notice to creditors is issued, executor
or administrator shall cause:
1. Publication of said notice 3 weeks successively
in newspaper of general circulation in the
province; and
2. Posting for the same period in -
i. Four (4) public places in the province, and
ii. Two (2) public places in the municipality
where the decedent last resided.
Publication of Notice to Creditors (Rule
86, Sec. 3)
• Publication of Notice to Creditors is Constructive
Notice to the Whole World
Hence, the creditor cannot be permitted to file his claim

beyond the period fixed in the notice on the ground that
he had no knowledge of the administration proceedings
(Villanueva v. PNB, 9 SCRA 145 [1963]).
Claims That Must Be Filed
(Rule 86, Sec. 5)
• The following claims must be filed within the time
limited in the notice:
1. Claims for money against the decedent arising

from contract, express or implied, whether due,
not due or contingent;
2. Claims for funeral expenses and expenses for the

last sickness of decedent; and
3. Judgment for money against decedent.

(Rule 86, Sec. 5)
• When the action is for recovery of money arising

from contract, and the defendant dies before entry
of final judgment, it shall not be dismissed but shall
be allowed to continue until entry of final
judgment. A favorable judgment obtained by the
plaintiff shall be enforced under Rule 86 (Rule 3,
Sec. 20).
(Rule 86, Sec. 5)
• Only money claims may be presented in the testate or
intestate proceedings. Not all money claims must be
presented, but only those arising upon a liability
contracted by the decedent before his death.
• Claims arising after decedent’s death cannot be
presented except:
1. funeral expenses; or
2. expenses for last sickness.
• Claims arising after decedent’s death may be allowed as
expenses of administration.
Claims Which Survive The Death of
Accused
• Claim for civil liability survives notwithstanding death

of accused if the same may also be based on a source of
obligation other than delict.
• Separate civil action may be enforced either against:
1. Estate of accused (contract); or
2. Executor or administrator (law, quasi-contract,
quasi-delict)
(People v. Bayotas, 236 SCRA 239 [1994]).
Claim of Executor or Administrator
Against The Estate (Rule 86, Sec. 8)
• If the executor or administrator has a claim against the estate
he represents, he shall give notice thereof, in writing, to the
court, and the court shall appoint a special administrator,
who shall, in the adjustment of such claim, have the same
power and be subject to the same liability as the general
administrator or executor in the settlement of other claims
(Rule 86, Sec. 8).
• The court may order the executor or administrator to pay to

the special administrator necessary funds to defend such
claim (Rule 86, Sec. 8).
Payment of Debts (Rule 88)
• The following rules shall be followed in payment of the
debts of the decedent:
1. If, after hearing all the money claims against the estate, it
appears that there are sufficient assets to pay the debts, the
executor or administrator shall pay the same within the
time limited for that purpose (Rule 88, Sec. 1).
2. If the testator makes provision by his will, or designates the
estate to be appropriated for the payment of debts, they
shall be paid according to the provisions of the will; but if
the provision made by the will or the estate appropriated, is
not sufficient, such part of the estate not disposed of by
will shall be appropriated for that purpose (Rule 88, Sec.
2).
Payment of Debts (Rule 88)
3. Where or heirs have entered into possession of portions of
the estate before the debts have been paid, and have
become liable to contribute for the payment of such debts
and expenses, the court may settle the amount of their
several liabilities, and order how much and in what manner
each person shall contribute, and may issue execution as
circumstances require (Rule 88, Sec. 6).
4. If the court is satisfied that a contingent claim duly filed is
valid, it may order the executor or administrator to retain in
his hands sufficient estate to pay such contingent claim
when the same becomes absolute, or if the estate is
insolvent, sufficient to pay a portion equal to the dividend
of the other creditors (Rule 88, Sec. 4).
Time For Paying Debts
(Rule 88, Secs. 15 and 16)
• On granting letters testamentary or administration the court

shall allow to the executor or administrator a time for
disposing of the estate and paying the debts and legacies of
the deceased, which shall not exceed one (1) year.
• The court may extend the time as the circumstances of the

estate require not exceeding six (6) months for a single
extension.
Time For Paying Debts
(Rule 88, Secs. 15 and 16)
• When an executor or administrator dies, and a new

administrator of the same estate is appointed, the court may
extend the time allowed for the payment of the debts or
legacies beyond the time allowed to the original executor or
administrator, not exceeding six (6) months at a time and not
exceeding six (6) months beyond the time which the court
might have allowed to such original executor or
administrator.
ACTIONS BY AND AGAINST
EXECUTORS AND ADMINISTRATORS
(Rule 87)
Actions That May Be Brought Against
Executors And Administrators
(Rule 87, Sec. 1)
• No action upon a claim for the recovery of money or debt or
interest thereon shall be commenced against the executor or
administrator (Rule 87, Sec. 1).
• However, to recover real or personal property, or an interest
therein, from the estate, or to enforce a lien thereon, and
actions to recover damages for an injury to person or
property, real or personal, may be commenced against the
executor or administrator (Rule 87, Sec. 1).
Actions That May Be Brought Against
Executors And Administrators
(Rule 87, Sec. 1)
• When an executor or administrator is appointed and assumes
the trust, no action to recover the title or possession of lands
or for damages done to such lands shall be maintained
against him by an heir or devisee until there is an order of
the court assigning such lands to such heir or devisee or until
the time allowed for paying debts has expired (Rule 87, Sec.
3).
 Before distribution is made or before any residue is
known, heirs and devisees have no cause of action against
the administrator for recovery of property left by the
deceased (Lao v. Dee, 90 Phil. 868).
When Heirs May File Action in Court
• General rule: Heirs have no legal standing to sue for
recovery or protection of property rights of the deceased.
• Heirs have legal standing in these cases:
1. Pending the filing of administration proceedings – under
Art. 777 of the Civil Code, rights to the succession are
transmitted from the moment of the death of the decedent;
2. Administration proceedings have already been commenced
but administrator has not yet been appointed;
3. Executor or administrator is unwilling or refuses to bring
suit; and
4. Administrator is alleged to have participated in the act
complained of and he is made a party defendant.
Double Value Rule
• If before the grant of letters testamentary or of

administration, a person embezzles or alienates
money or property of the deceased, he is liable to an
action in favor of executor/administrator for double
the value of the property sold, embezzled or alienated
(Rule 87, Sec. 8).
Requisites Before Creditor May Bring An Action
For Recovery of Property Fraudulently Conveyed
By The Deceased
• When there is such a deficiency of assets, and the

deceased in his lifetime had made or attempted such a
conveyance, and the executor or administrator has not
commenced the action therein provided for, any creditor
of the estate may commence, in the name of the
executor or administrator, an action for the recovery of
the subject of the conveyance or attempted conveyance
for the benefit of the creditors (Rule 87, Sec. 10).
By The Deceased
• However, the action shall not be commenced until the

creditor has filed in a court a bond executed to the
executor or administrator, in an amount approved by the
judge, conditioned to indemnify the executor or
administrator against the costs and expenses incurred
by reason of such action (Rule 87, Sec. 10).
By The Deceased
• Where the conveyance or attempted conveyance had

been made by the deceased in his lifetime in favor of
the executor or administrator, the action which a
creditor may bring shall be in the name of all the
creditors, and permission of the court and filing of bond
are not necessary (Rule 87, Sec. 10).
DISTRIBUTION AND PARTITION
(Rule 90)
When Order for Distribution of Residue
Shall Be Made
• General rule: Distribution of the residue to persons entitled
thereto shall be made after notice and hearing, and after
payment of:
1. debts;
2. funeral charges;
3. expenses of administration;
4. allowance to widow; and
5. inheritance tax.
• Exception: Distribution before payment of obligations may
be made, provided the distributees give bond conditioned for
payment thereof within such time as the court directs.
Liquidation
• Liquidation refers to the determination of all the

assets of the estate and the payment of all the debts
and expenses (Bernardo vs. Court of Appeals, G.R.
No. L-18148, 28 February 1963)
Project of Partition
• Towards the end of the proceedings in a
settlement of estate petition, a project of
partition is usually prepared and presented to
the court. The project of partition is a proposal
for distribution of the hereditary estimates and
determines the persons entitled thereto (Moran,
Comments on the Rules of Court, 1997 ed., Vol.
3, pp. 688-689)
Remedy of an Heir Entitled To Residue
But Not Given His Share
• The heir who is entitled to residue but is not given his
share must demand his share through:
1. a proper motion in the same probate or administration
proceedings; or
2. motion to reopen if it had already been closed, and not
through an independent action which would be tried by
another court or judge which might reverse a decision or
order of the probate court already final and executed and
reshuffle the properties long ago distributed and disposed
of (Guilas v. Judge of CFI of Pampanga, G.R. No. L-
26695, 31 January 1972).
• Remedy of Preterited Heir:
 The intestate proceedings, although closed and

terminated, can still be opened within the prescriptive
period upon petition by the preterited heir (Solivio v.
Court of Appeals, 182 SCRA 1199).
 The prescriptive period is 10 years. An action upon an

obligation created by law must be brought within 10 years
from the time the right of action accrues (Civil Code, Art.
1144).
• The Remedy for Inclusion of a Party-Heir Where
Judgment Has Become Final
 After the decision became final and executory, the trial

judge lost his jurisdiction over the case. Any modification
that he would make, as in this case, the inclusion of Mary
Lyon Martin would be in excess of his authority. The
remedy of Mary Lyon Martin is to file an independent suit
against the parties and all other heirs for her share in the
subject property, in order that all the parties in interest can
prove their respective claims. (Nuñal v. Court of Appeals,
221 SCRA 26 [1991]).
Instances When Probate Court May
Issue Writ of Execution
• General Rule: As general rule, a probate court cannot issue
writ of execution (Dinglasan v. Ang Chia, G.R. No. L-3342,
18 April 1951).
• Exceptions:
1. To satisfy the distributive shares of devisees, legatees
and heirs in possession of the decedent’s assets (Rule
88, Sec. 6).
2. To enforce payment of the expenses of partition (Rule
90, Sec. 3).
3. To satisfy the costs when a person is cited for
examination in probate proceedings (Rule 142, Sec. 13).
TRUSTEES
(Rule 98)
Trust, defined
A trust is a confidence reposed in one person, called the
trustee, for the benefit of another called the cestui que
trust with respect to property held by the former for the
benefit of the latter.
Appointment of a Trustee
A trustee necessary to carry into effect the provisions of a
will on written instrument shall be appointed by the court
in which the will was allowed, otherwise by the court of
the province in which the property, or some portion
thereof, affected by the trust is situated (Rule 98, Sec. 1).
Distinguished from
Executor/Administrator
• The duties of executors or administrators are fixed

and/or limited by law while those of the trustee of an
express trust are usually governed by the intention of
the trustor or the parties, if established by contract.
• The duties of trustees may cover a wider range than

those of executors or administrators of the estate of
deceased persons (Araneta v. Perez, G.R. Nos. L-
16185-86, 31 May 1962).
Conditions of the Bond
(Rule 98, Sec. 6)
1. Make and return to the court a true inventory of all real
and personal estate that at the time of the inventory
shall have come to his possession or knowledge.
2. Manage and dispose of all such estate according to law
and the will of the testator or provisions of the
instrument or under which he was appointed.
3. Render a true account of the property in his hands.
4. At the expiration of the trust, settle his accounts in court
and pay or deliver all the estate remaining in his hands,
or due from him on such settlement, to the person/s
entitled thereto.
Requisites for the Removal and Resignation
of a Trustee (Rule 98, Sec. 8)
• The following are the requisites for removal:

1. A petition filed by the parties beneficially interested;
2. Notice to the trustee; and
3. Hearing.
• The resignation of a trustee shall be allowed if it appears to

the court proper to allow such resignation.
Grounds for Removal and Resignation of a
Trustee (Rule 98, Sec. 8)
• The court may remove a trustee on the following grounds:
1. The removal appears essential in the interest of
petitioners;
2. The trustee is insane; and
3. The trustee is otherwise incapable of discharging the
trust or is evidently unsuitable to act as one.
• A trustee, whether appointed by the court or under a written

instrument, may resign his trust if it appears to the court
proper to allow such resignation.
Extent of Authority of Trustee
1. The powers of a trustee appointed by a Philippine court

cannot extend beyond the confines of the territory of the
Republic of the Philippines. This is based on the principle
that his authority cannot extend beyond the jurisdiction of
the country under whose courts he was appointed.
2. In the execution of trusts, the trustee is bound to comply

with the directions contained in the trust instrument
defying the extent and limits of his authority, and the
nature of his powers and duties.
ESCHEAT
(Rule 91)
Escheat, defined
Escheat is a proceeding whereby the real and personal property
of a deceased person in the Philippines, who died without
leaving any will or legal heirs, become the property of the State
upon his death.
Parties in Escheat Proceedings

An escheat proceeding is initiated by the Government through
the Solicitor General. All interested parties, especially the
actual occupants and adjacent lot owners shall be personally
notified of the proceeding and given opportunity to present
their valid claims; otherwise, it will be reverted to the State.
When to File (Rule 91, Sec. 1)
• An escheat proceeding may be filed when a

person dies intestate, seized of real property
in the Philippines, leaving no heir or person
by law entitled to the same.
Requisites for Filing of Petition
• The following are the requisites for instituting

escheat proceedings:
1. A person died intestate;
2. Such person left properties in the
Philippines; and
3. Such person left no heirs or persons
entitled to the same.
Where To File The Petition (Rule 91, Sec. 1)
Regional Trial Court of the place where the deceased was a
resident, or in which he had estate, if he was a nonresident.
Notice and Publication (Rule 91, Sec. 2)

• Date of hearing must not be more than 6 months after entry
of order.
• Publication of order must be at least once a week for 6
consecutive weeks in a newspaper of general circulation in
the province.
Remedy of Respondent Against Petition;
Period for Filing a Claim
• Remedy of Respondent Against Escheat Petition
 Motion to dismiss for failure to state a cause of
action where petition for escheat does not state
facts which entitle petitioner to the remedy prayed
for (Go Poco Grocery v. Pacific Biscuit Co., 65
Phil. 443; Republic v. PNB, G.R. No. L-16016, 30
December 30); or other grounds for dismissal
under the rules (Municipal Council of San Pedro,
Laguna v. Colgio de San Jose, 65 Phil. 318).
Remedy of Respondent Against Petition;
Period for Filing a Claim
• When And By Whom Claim To Estate Must Be
Filed (Rule 91, Sec. 4)
• If a devisee, legatee, heir, widow, widower, or other
person entitled to such estate appears and files a
claim thereto with the court within five (5) years
from the date of such judgment, such person shall
have possession of and title to the same, or if sold,
the municipality or city shall be accountable to him
for the proceeds after deducting reasonable charges
for the care of the estate; but a claim not made
within the said time shall be forever barred.
GUARDIANSHIP
(Rules 92 – 97; and A.M. No. 03-02-05-SC)
Guardianship, defined
Guardianship refers to a trust relation in which one
person acts for another whom the law regards as
incapable of managing his own affairs.
(The person who acts is called the guardian and the
incompetent is called the ward.)
• A guardian is a person in whom the law has entrusted

the custody and control of the person or estate or both
of an infant or other person incapable of managing his
own affairs.
Basis of Guardianship
(Parens Patriae)
• Where minors are involved, the State acts as

parenspatriae. It is the duty of protecting the
rights of persons or individuals who because
of age or incapability are in an unfavorable
position vis-à-vis other parties.
Purpose of Guardianship
• It is intended to safeguard the rights and

interests of minors and incompetent
persons.
Kinds of Guardians
• According to Scope –
1. Guardian of the Person – one who has been
lawfully invested with the care of the person of the
minor;
2. Guardian of the Property – one appointed to
have the management of the estate of a minor or
incompetent;
3. General Guardian – one appointed to have the
care and custody of the person and of all the
property of the ward.
Kinds of Guardians
• According to Constitution –
1. Legal Guardian – without need of judicial.
appointment;
2. Guardian Ad Litem– appointed by courts of
justice to prosecute or defend a minor, insane or
person declared to be incompetent, in an action in
court;
3. Judicial Guardian – appointed in pursuance to
law, as guardian for insane persons, prodigals,
minors, etc
GENERAL POWERS AND DUTIES OF
GUARDIANS (Rule 96)
1. To have the care and custody of the person or the
ward, and the management of his estate, or the
management of the estate only, as the case may
be (Rule 96, Sec. 1);
2. To pay the debts of the ward (Rule 96, Sec. 2);
3. To settle accounts, collect debts, and appear in
actions for the ward (Rule 96, Sec. 3);
4. To manage the estate of the ward frugally, and
apply the proceeds to maintenance of the ward
(Rule 96, Sec. 4);
GENERAL POWERS AND DUTIES OF
GUARDIANS (Rule 96)
5. To render a verified inventory within 3 months
after his appointment and annually thereafter, and
upon application of interested persons (Rule 96,
Sec. 7); and
6. To render to court for its approval an accounting
of the property for 1 year from his appointment
and every year thereafter, and upon application of
interested persons (Rule 96, Sec. 8).
CONDITIONS OF THE BOND OF THE
GUARDIAN (Rule 94)
1. Within three (3) months after the issuance of
letters of guardianship, make inventory of all
the property;
2. Faithfully execute the duties of the trust;
3. Render a true and just account of all the
property of the ward; and
4. Perform all orders of the court (Sec. 1).
Purpose of the Bond:
• To protect the property of the minor or

incompetent to the end that he may be
assured of an honest administration of his
funds.
RULE ON GUARDIANSHIP OVER MINORS
(A.M. No. 03-02-05-SC, effective 1 May 2003)
• Applicability of the Rule (Sec. 1)

The Rule applies to petitions for
Guardianship over the person or property,
or both, of a minor.
Who May Petition (Sec. 2)
1. Any relative; or
2. Other person on behalf of a minor; or
3. The minor himself if, 14 years of age or
over; or
4. The Secretary of Social Welfare and
Development; or
5. Secretary of Health, in case of an insane
minor who needs to be hospitalized.
Where to File Petition (Sec. 3)
• Family Court of the province or city where the

minor actually resides.
• If the minor resides in a foreign country, with the
Family Court of the province or city where his
property or any part thereof is situated.
Grounds of Petition (Sec. 4)
1. Death, continued absence, or incapacity of
his parents;
2. Suspension, termination or deprivation of
parental authority;
3. Remarriage of his surviving parent, if the
latter is found unsuitable to exercise parental
authority;
4. When the best interests of the minor so
require.
Considerations in Appointing Guardians
(Sec. 5)
1. Moral character;
2. Physical, mental, and psychological condition;
3. Financial status;
4. Relationship of trust with minor;
5. Availability to exercise the powers and duties of a
guardian for the full period of the guardianship;
6. Lack of conflict of interest with the minor; and
7. Ability to manage the property of the minor.
Who may be Appointed as Guardian
(Sec. 6)
• In default of parents or a court-appointed guardian, the
court may appoint a guardian of a minor, observing as far
as practicable, thefollowing order of preference:
1. The surviving grandparent, and in case several

grandparents survive, the court shall elect any of them
taking into account all relevant considerations;
2. The oldest brother or sister of the minor over 21 years
of age, unless unfit or disqualified;
3. The actual custodian of the minor over 21 years of age,
unless unfit or disqualified;
4. Any other person, who in the sound discretion of the
court, would serve the best interests of the minor.
Contents of the Petition (Sec. 7)
1. Jurisdictional facts;
2. Name, age, and residence of the prospective
ward;
3. The ground rendering the appointment
necessary or convenient;
4. The death of the parents of the minor; or the
termination, deprivation, or suspension of
their parental authority;
Contents of the Petition (Sec. 7)
5. The remarriage of the minor’s surviving parent
6. The names, ages, and residences of relatives
within the 4th civil degree of minor, and of
persons having him in their care and custody; and
7. The probable value, character, and location of the
property of the minor, and the name, age, and
residence of the person for whom letters of
guardianship are prayed.
• The petition shall be verified and accompanied by a

certification of non-forum shopping
Time and Notice of Hearing
• The notice must be given to:
1. Persons named in the petition; and to the

2. Minor, if over 14 years of age.
(Notice to a minor who is above 14 years old is
jurisdictional.)
Bond of Parents as Guardian (Sec. 16)
• The parents shall post a bond if the market value

of the child’s properties or income exceeds
P50,000 and the bond shall not be less than 10%
of the value of the properties or income.
Petition to Sell or Encumber Property
(Sec. 19)
• The guardian may file a verified petition and pray that
an order be issued authorizing the sale or
encumbrance of the property based on the following
grounds:
1. When the income of estate is insufficient to

maintain and educate the ward; and
2. When it appears that it is for the benefit of the
ward.
Grounds for Removal or Resignation of
Guardian
• The court may, upon reasonable notice to the
guardian, remove him if he:
1. becomes insane or otherwise incapable of

discharging the trust;
2. becomes unsuitable;
3. has wasted or mismanaged the property of the
ward; or
4. has failed to render an account or make a return
after it was due.
Grounds for Removal or Resignation of
Guardian
• The court may allow the guardian to resign for justifiable
causes.
• Upon the removal or resignation of the guardian, the court
shall appoint a new one.
• No motion for removal or resignation shall be granted
unless the guardian has submitted the proper accounting
of the property of the ward and the court has approved the
same.
Grounds for Termination of Guardianship
(Sec. 25)
1. The ward has come of age; or

2. He has died.
Effect of the Rule (Sec. 27)
• This Rule amends Rules 92 to 97 inclusive of the
Rules of Court on guardianship of minors.
Guardianship of incompetents who are not minors
shall continue to be under the jurisdiction of the
regular courts and governed by the Rules of
Court.
ADOPTION
(R.A. No. 8552; R.A. 8043; and
A.M. No. 02-6-02-SC)
Nature and Concept of Adoption
• Adoption is a juridical act, a proceeding in rem

which creates between two persons a relationship
similar to that which results from legitimate
paternity and filiation.
Purpose of Adoption
• Adoption used to be for the benefit of the adoptor.
It was intended to afford persons who have no
child of their own the consolation of having one
by creating thru legal fiction the relation of
paternity and filiation where none exists by blood
relationship.
Objectives of Rule on Adoption
1. Best interests of the child, which is the
paramount consideration in all matters relating
to his care, custody, and adoption
2. The State shall provide alternative protection
and assistance thru foster care or adoption for
every child who is a foundling, neglected,
orphaned, or abandoned.
Laws on Adoption
• The prevailing laws on adoption are R.A.No.

8552 (Domestic Adoption Act of 1998) and R.A.
No. 8043 (Inter-Country Adoption Act of 1995).
• Rule on Adoption (A.M. No. 02-6-02-SC), 22
August 22– Guidelines issued by the Supreme
Court in petitions for adoption. The Rule repealed
Rules 99-100 of the Rules of COurt. It covers
domestic adoption (Secs. 1-25) and inter-
country adoption (Secs. 26-32).
DISTINGUISH DOMESTIC ADOPTION FROM INTER-
COUNTRY ADOPTION
Domestic Adoption Inter-Country Adoption
(R.A.No. 8552) (R.A. No. 8043)
Type of Proceeding
Judicial Adoption Extrajudicial Adoption
Who may Adopt
The following may adopt:

(a)Any Filipino citizen;
An alien or a Filipino citizen
(b)Any alien possessing the
permanently residing abroad may
same qualifications as above
file an application for inter-country
stated for Filipino nationals;
adoption of a Filipino child.
(c)The guardian with respect to
the ward.
DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY
ADOPTION
(R.A. No. 8552) (R.A. No. 8043)
Who may be adopted
The following may be adopted:
(a) Any person below 18 years of age who has
been administratively or judicially declared
available for adoption;
(b) The legitimate son/daughter of one spouse
by the other spouse;
(c) An illegitimate son/daughter by a qualified
adopter, to improve his/her status to that of
legitimacy;
(d) A person of legal age, if prior to the Only a legally free child may be the subject of
adoption, said person has been consistently inter-country adoption.
considered and treated by the adopter(s) as
his/her own child since minority;
(e) A child whose adoption has been previously
rescinded; or
(f) A child whose biological or adoptive
parent(s) has died; Provided, That no
proceedings shall be initiated within 6
months from the time of death of said
parent(s) (Sec. 8)
DISTINGUISH DOMESTIC ADOPTION FROM INTER-
COUNTRY ADOPTION
(R.A. No. 8552) (R.A. No. 8043)
Where to file application
RTC having jurisdiction over the child, or
with the Inter-Country Adoption Board,
Family Court of the place where the adopter through an intermediate agency, whether
resides governmental or an authorized and
accredited agency, in the country of the
prospective adoptive parents.
What petition for adoption may include
May include prayer for change of name,
rectification of simulated birth or declaration
Only a petition for adoption
that the child is a foundling, abandoned,
dependent or neglected child.
Supervised Trial Custody
Supervised trial custody period in the
Philippines is for at least 6 months (Court may Supervised trial custody period in the
reduce period or exempt parties from trial Philippines for at least 6 months.
custody).
DOMESTIC ADOPTION ACT (R.A. No. 8552)
EFFECTS OF ADOPTION
1. The adopter will exercise parental authority (R.A. No. 8552,

Sec. 16);
2. All legal ties between biological parents and the adoptee shall
be severed, except when biological parent is souse of adopter
(Ibid);
3. Adoptee shall be considered legitimate child of adopter for
all intents and purposes (R.A. No. 8552, Sec. 17);
4. Adopter(s) and the adoptee shall have reciprocal rights of
succession without distinction from legitimate filiations.
However, if the adoptee and his/her biological parent(s) had
left a will, the law on testamentary succession shall govern
(R.A. No. 8552, Sec. 18).
5. The adopted shall remain an intestate heir of his parents and
other blood relatives (Family Code, Art. 189).
EFFECTS OF ADOPTION
• Adoption is strictly between adopter and adopted.
• If adopting parent should die before adopted child, latter

cannot represent the adopter in the inheritance from the
parents and ascendants of the adopter. Adopted child is not
related to the deceased in that case because filiation
created by fiction of law is exclusive between adopted and
adopter. By adoption, the adopters can make for
themselves an heir but they cannot make on for their
relatives (Republic v. Valencia, G.R. No. L-32181, 5
March 1986).
EFFECTS OF ADOPTION
• An illegitimate child, upon adoption by her

natural father, may use the surname of her
natural mother as her middle name (In the
matter of the Adoption of Stepahanie Nathy
Astorga Garcia, G.R. No. 148311, 31March
2005).
INSTANCES WHEN ADOPTION MAY BE
RESCINDED
• Under the Domestic Adoption Act, the adopter cannot
rescind the adoption.
• Only the adoptee or his guardian or counsel may seek its

rescission based on the following grounds:
1. Repeated physical violence and verbal maltreatment by
the adopter despite having undergone counselling;
2. Attempt on the life of the adoptee;
3. Sexual assault or violence; and
4. Abandonment or failure to comply with the parental
obligations (R.A. No. 8552, Sec. 19)
EFFECTS OF RESCISSION OF ADOPTION (R.A.
No. 8552, Sec. 20)
1. The parental authority of the biological parent of the
adoptee, if known, or the legal custody of the
Department shall be restored if the adoptee is still a
minor or incapacitated.
2. The reciprocal rights and obligations of the adopter and
the adoptee to each other shall be extinguished.
3. The successional rights shall revert to its status prior to
the adoption, as of the date of judgment of judicial
rescission.
4. Vested rights prior to judicial rescission shall be
respected.
INTER-COUNTRY ADOPTION (R.A. No. 8043)
• Inter-country adoption refers to the socio-legal

process of adopting a Filipino child by a foreigner
or a Filipino citizen permanently residing abroad
where the petition is filed, the supervised trial
custody is undertaken, and the decree of adoption
is issued outside the Philippines (R.A. No. 8043,
Sec. 3 [a]).
A. WHEN ALLOWED
• It is allowed when the Inter-Country Adoption

Board (ICAB) has ensured that all possibilities for
adoption of the child under the Domestic
Adoption Act have been exhausted, and that inter-
country adoption is in the best interest of the child
(R.A. No. 8043, Sec. 7)
B. FUNCTIONS OF THE REGIONAL TRIAL

COURT
• The Regional Trial Court shall immediately transmit

the petition to the Board for appropriate action (Rule
on Adoption, Sec. 32)
C. “BEST INTEREST OF THE MINOR”

STANDARD
• Inter-country adoption is allowed only when the

same shall prove to be beneficial to the child’s
best interests, and shall serve and protect his/her
fundamental rights (Sec. 2).
Financial qualification in adoption
• Since the primary consideration in adoption is the
best interest of the child, it follows that the financial
capacity of prospective parents should also be
carefully evaluated and considered. Certainly, the
adopter should be in a position to support the would-
be adopted child or children, in keeping with the
means of the family (Landingan v. Republic, G.R. No.
164948, 27 June 2006).
WRIT OF HABEAS CORPUS /
WRIT OF AMPARO /
WRIT OF HABEAS DATA
(Rule 102; A.M. No. 07-9-12-SC; A.M. No. 08-1-16-SC)
DISTINGUISH FROM WRIT OF AMPARO AND HABEAS DATA
WRIT HABEAS CORPUS AMPARO HABEAS DATA
LEGAL BASIS The Rule was same same
drafted pursuant to
the Supreme
Court’s
constitutional
power to
promulgate rules
for the protection
and enforcement of
constitutional rights
(Constitution, Art.
VIII, Sec. 5[5]).
GOVERNING Rule 102 A.M. No. 07-9-12- A.M. No. 08-1-16-

RULE SC SC
DEFINITION “Habeas corpus” is a Latin It is a remedy It is a remedy
phrase which literally available to any available to any
means “you have the body”. person whose right to person whose right to
Basically, it is a writ directed life, liberty, and privacy in life, liberty
to the person detaining security has been or security is violated
another, commanding him violated or is or threatened by an
to produce the body of the threatened with unlawful act or
prisoner at a designated violation by an omission of a public
time and place, with the day unlawful act or official or employee,
and cause of his capture and omission of a public or of a private
detention, to do, submit to, official or employee, individual or entity
and receive whatsoever the or of a private engaged in the
court or judge awarding the individual or entity. gathering, collecting
writ shall consider in that The writ covers or storing of data or
behalf. extralegal killings and information regarding
enforced the person, family,
disappearances or home and
threats thereof. correspondence of the
aggrieved party.
APPLICABIL Sec. 1 Sec. 1 Sec. 1
ITY To all cases of illegal To any person whose To any person whose
confinement or detention: right to life, liberty and right to privacy in life,
1. By which any person is security is violated or liberty and security is
deprived of his liberty; threatened with violation violated or threatened
or by an unlawful act or with violation by an
2. By which the rightful omission of a public unlawful act or
custody of any person official or employee, or of omission of a public
is withheld from the a private individual or official or employee,
person entitled thereto entity or of a private
individual or entity
engaged in:
1. gathering
2. collecting
3. storing
of data or information
regarding the person
family, home and
correspondence of the
aggrieved party.
PETITIONER Sec. 3 Sec. 2 Sec. 2
By the party for whose By the aggrieved party, General rule:
relief it is intended, or or by any qualified The aggrieved party
by some other person in person or entity in the Except:
his behalf order provided in Sec. 2 In cases of extralegal
killings and
enforced
disappearances:
1. Immediate
family;
2. In default of
no.1, ascendant,
descendant or
collateral relative
within the 4th
civil degree of
consanguinity or
affinity.
PETITIONER Sec. 3 Sec. 2 Sec. 2
By the party for whose By the aggrieved party, General rule:
relief it is intended, or or by any qualified The aggrieved party
by some other person in person or entity in the Except:
his behalf order provided in Sec. 2 In cases of extralegal
killings and
enforced
disappearances:
1. Immediate
family;
2. In default of
no.1, ascendant,
descendant or
collateral relative
within the 4th
civil degree of
consanguinity or
affinity.
EFFECTIVITY The Rule took effect on 1 The Rule took effect on The Rule took effect
July 1997 24 October 2007 on 2 February 2008
VENUE Rule 4, Sec. 2 Sec. 3 Sec. 3
Where the plaintiff SC, CA and SB: Manila; SC, CA and SB:
resides or where the RTC of the place where Manila; RTC:
defendant resides, or in the threat, act or 1. where the
the case of non-resident omission was committed petitioner resides;
defendant, where he or any of its elements 2. where the
may be found, at the occurred respondent
election of the plaintiff. resides
3. which has
jurisdiction over
the place where
data or
information is
gathered etc.
all at the option of the
petitioner
EXTENT OF Supreme Court, Anywhere in the Anywhere in the
ENFORCEA Court of Appeals and Philippines Philippines
BILITY Sandiganbayan:
anywhere in the
Philippines
RTC: only within its
judicial district
WHEN TO Sec. 2 Sec. 3
FILE On any day and at On any day and at
any time any time
DOCKET Sec. 4 Sec. 5

FEES AND Exempt Exemption only
OTHER applies to an
LAWFUL indigent petitioner
FEES
REQUISIT Sec. 3 Sec. 5 Sec. 6
ES OF Signed and verified Signed and verified Verified written
PETITION petition
ISSUANCE Sec. 5 Sec. 6 Sec. 7
OF THE When it appears, it When it its face When in its face
WRIT ought to be issued ought to issue ought to issue
immediately immediately immediately
However there
should be service
within three days
SETTING Sec. 12 Sec. 6 Sec. 7
OF Hearing on return Not later than 7 Not later than 10
HEARING days from the date days from the
of its issuance date of its
issuance
HOW Sec. 7 Sec. 8 Sec. 9
SERVED Service of the writ If the writ cannot be If the writ cannot
shall be made by served personally on be served
leaving the original the respondent, the personally on the
with the person to rules on substituted respondent, the
whom it is directed service shall apply rules on substituted
and preserving a copy service shall apply
on which to make
return of service. If
that person cannot be
found, or has not the
prisoner in custody
then the service shall
be made on any
person having or
exercising such
custody
HABEAS
WRIT AMPARO HABEAS DATA
CORPUS
CONTENTS Sec. 10 Sec. 9 Sec. 9
OF RETURN Signed and shall Verified written Verified written
also be sworn to return return
if the prisoner is -period to file -may be
not produced cannot be reasonably
extended except on extended by the
highly meritorious court for
ground; justifiable
grounds;
HABEAS
WRIT HABEAS CORPUS AMPARO
DATA
PENALTIES Sec. 16 Sec. 7 Secs. 8 and 11
Clerk of a court who refuses to 1. Clerk of court who Same with writ of
issue the writ; refuses to issue the writ; amparo
Person to whom a writ is 2. Deputized person who
directed, who neglects or refuses refuses to serve the same;
to obey or make return of the Penalty - contempt without
same according to the command prejudice to other
thereof, or makes false return disciplinary actions.
thereof, refuses to deliver to the Sec 16
person demanding, within six 1. Respondent who refuses
(6) hours after the demand of a to make a return, or make
true copy of the warrant or order a false return;
of commitment: 2. Any person who
Penalties: disobeys or resists a
a. forfeit to the party lawful process order of
aggrieved the sum of one the court
thousand pesos, to be Penalties:
recovered in a proper action; a. Contempt;
b. contempt. b. Imprisonment;
c. Fine
HABEAS
WRIT HABEAS CORPUS AMPARO
DATA
PENALTIES Sec. 16 Sec. 7 Secs. 8 and 11
Clerk of a court who refuses to 1. Clerk of court who Same with writ of
issue the writ; refuses to issue the writ; amparo
Person to whom a writ is 2. Deputized person who
directed, who neglects or refuses refuses to serve the same;
to obey or make return of the Penalty - contempt without
same according to the command prejudice to other
thereof, or makes false return disciplinary actions.
thereof, refuses to deliver to the Sec 16
person demanding, within six 1. Respondent who refuses
(6) hours after the demand of a to make a return, or make
true copy of the warrant or order a false return;
of commitment: 2. Any person who
Penalties: disobeys or resists a
a. forfeit to the party lawful process order of
aggrieved the sum of one the court
thousand pesos, to be Penalties:
recovered in a proper action; a. Contempt;
b. contempt. b. Imprisonment;
c. Fine
WHEN none none Sec 12
DEFENSES May be heard in
MAY BE chambers
HEARD IN
CHAMBERS
SUMMARY Sec. 13 Sec. 15
HEARING The hearing on the petition Same with writ of
shall be summary. However, amparo
the court, justice or judge
may call for a preliminary
conference to simplify the
issues and determine the
possibility of obtaining
stipulations and admissions
from the parties.
The hearing shall be from
day to day until completed
and given the same priority
as petitions for habeas
corpus.
WHEN none none Sec 12
DEFENSES May be heard in
MAY BE chambers
HEARD IN
CHAMBERS
EFFECT OF Sec. 12 Sec. 14.
FAILURE TO In case the respondent fails to In case the
FILE A file a return, the court, justice respondent fails to
RETURN or judge shall proceed to hear file a return, the
the petition ex parte. court, justice or
judge shall proceed
to hear the petition
ex parte, granting
the petitioner such
relief as the petition
may warrant unless
the court in its
discretion requires
the petitioner to
submit evidence.
SUMMARY Sec. 13 Sec. 15
HEARING The hearing on the Same with writ of
petition shall be amparo
summary. However, the
court, justice or judge
may call for a
preliminary conference
to simplify the issues and
determine the possibility
of obtaining stipulations
and admissions from the
parties.
The hearing shall be from
day to day until
completed and given the
same priority as petitions
for habeas corpus.
APPEAL Sec. 15 in relation Sec. 19 Sec. 19
to Sec 3 of Rule Rule 45 by petition for Same as writ
41 and Sec 39 of review on certiorari of amparo
BP 129: with peculiar features:
48 hours from 1. Appeal may raise
notice of questions of fact or
judgment law or both;
appealed from by 2. Period of appeal
ordinary appeal shall be 5 working
days from the date
of notice of the
adverse judgment;
3. Same priority as
habeas corpus cases
RETURN OF Sec. 17
SERVICE The officer who
executed the final
judgment shall
make a verified
return within 3
days from its
enforcement
APPEAL Sec. 15 in relation to Sec. 19 Sec. 19
Sec 3 of Rule 41 and Rule 45 by petition for review Same as writ of
Sec 39 of BP 129: on certiorari with peculiar amparo
48 hours from notice features:
of judgment appealed 1. Appeal may raise
from by ordinary questions of fact or law or
appeal both;
2. Period of appeal shall be
5 working days from the
date of notice of the
adverse judgment;
3. Same priority as habeas
corpus cases
ARCHIVING Sec. 20
AND The court shall not
REVIVAL OF dismiss the petition, but
CASES shall archive it, if upon
its determination it
cannot proceed for a
valid cause such as the
failure of petitioner or
witnesses to appear due
to threats on their lives.
The petition shall be
dismissed with prejudice
upon failure to prosecute
the caseafter the lapse of
two (2) years from notice
to the petitioner of the
order archiving the case.
HABEAS
CORPUS
INSTITUTION Sec. 21 Sec. 20
OF SEPARATE This Rule shall not Same as writ of
ACTIONS preclude the filing of amparo
separate criminal, civil or
administrative actions.
EFFECT OF Sec. 22 Sec. 21

FILING When a criminal action Same as writ of
CRIMINAL has been commenced, no amparo
ACTION separate petition for the
writ shall be filed. The
reliefs under the writ
shall be available by
motion in the criminal
case.
HABEAS
CORPUS
CONSOLIDATION Sec. 23 Sec. 22
When a criminal action Same as writ of
is filed subsequent to amparo
the filing of a petition
for the writ, the latter
shall be consolidated
with the criminal
action.
When a criminal action
and a separate civil
action are filed
subsequent to a petition
for a writ of amparo,
the latter shall be
consolidated with the
criminal action.
HABEAS
CORPUS
EFFECT ON Sec. 24 Sec. 23
SUBSTANTIVE This Rule shall not diminish, Difference is that
RIGHTS increase or modify in writ of amparo
substantive rights the Constitution
recognized and protected by provides the law
the Constitution. from which the
substantive rights
exist
SUPPLETORY Rule 72, Sec. 2 Sec. 25 Sec. 24
APPLICATION In the absence of The Rules of Court shall Same as writ of
OF THE RULES special provisions, apply suppletorily insofar as amparo
OF COURT the rules provided it is not inconsistent with
for in ordinary this Rule.
actions shall be, as
far as practicable,
applicable in
special
proceedings.
WRIT OF AMPARO
• INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT
(Sec. 14)
• Upon filing of the petition or at anytime before final judgment, the court,
justice or judge may grant any of the following reliefs:
A. Temporary Protection Order. – The court, justice or judge, upon motion

or motuproprio, may order that the petitioner or the aggrieved party and
any member of the immediate family be protected in a government agency
or by an accredited person or private institution capable of keeping and
securing their safety. If the petitioner is an organization, association or
institution referred to in Section 3(c) of this Rule, the protection may be
extended to the officers involved.
• The Supreme Court shall accredit the persons and private institutions that
shall extend temporary protection to the petitioner or the aggrieved party
and any member of the immediate family, in accordance with guidelines
which it shall issue.
• The accredited persons and private institutions shall comply with the
rules and conditions that may be imposed by the court, justice or judge.
WRIT OF AMPARO
• INTERIM RELIEFS AVAILABLE TO PETITIONER AND
RESPONDENT (Sec. 14)
B. Inspection Order. — The court, justice or judge, upon verified
motion and after due hearing, may order any person in possession
or control of a designated land or other property, to permit entry for
the purpose of inspecting, measuring, surveying, or photographing
the property or any relevant object or operation thereon.
• The motion shall state in detail the place or places to be inspected. It shall
be supported by affidavits or testimonies of witnesses having personal
knowledge of the enforced disappearance or whereabouts of the
aggrieved party.
• If the motion is opposed on the ground of national security or of the
privileged nature of the information, the court, justice or judge may
conduct a hearing in chambers to determine the merit of the opposition.
WRIT OF AMPARO
• INTERIM RELIEFS AVAILABLE TO
PETITIONER AND RESPONDENT (Sec. 14)
B. Inspection Order. (cont’d.)
• The movant must show that the inspection order is
necessary to establish the right of the aggrieved party
alleged to be threatened or violated.
• The inspection order shall specify the person or
persons authorized to make the inspection and the date,
time, place and manner of making the inspection and
may prescribe other conditions to protect the
constitutional rights of all parties. The order shall
expire five (5) days after the date of its issuance, unless
extended for justifiable reasons.
WRIT OF AMPARO
• INTERIM RELIEFS AVAILABLE TO PETITIONER
AND RESPONDENT (Sec. 14)
C. Production Order. – The court may order any person
in possession, custody or control of any designated
documents, papers, books, accounts, letters,
photographs, objects or tangible things, or objects in
digitized or electronic form to produce and permit their
inspection, copying or photographing by or on behalf of
the movant.
• The motion may be opposed on the ground of national security
or of the privileged nature of the information, in which case the
court, justice or judge may conduct a hearing in chambers to
determine the merit of the opposition.
• The court, justice or judge shall prescribe other conditions to
protect the constitutional rights of all the parties.
WRIT OF AMPARO
• INTERIM RELIEFS AVAILABLE TO PETITIONER
AND RESPONDENT (Sec. 14)
D. Witness Protection Order. – The court, justice or
judge, upon motion or motu proprio, may refer the
witnesses to the Department of Justice for admission to
the Witness Protection, Security and Benefit Program,
pursuant to Republic Act No. 6981.
• The court, justice or judge may also refer the witnesses to
other government agencies, or to accredited persons or
private institutions capable of keeping and securing their
safety.
QUANTUM OF PROOF IN APPLICATION FOR
ISSUANCE OF WRIT OF AMPARO
• The parties shall establish their claims by substantial
evidence.
• The respondent who is a private individual or entity must
prove that ordinary diligence as required by applicable laws,
rules and regulations was observed in the performance of duty.
• The respondent who is a public official or employee must
prove that extraordinary diligence as required by applicable
laws, rules and regulations was observed in the performance of
duty.
• The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed to
evade responsibility or liability.
RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS
CORPUS IN RELATION TO CUSTODY OF MINORS (A.M. NO.
03-04-04-SC)
• Who May File Petition (Sec. 2)
A verified petition for the rightful custody of a minor

may be filed by any person claiming such right.
03-04-04-SC)
• Requisites for the Grant of the Writ
1. The petitioner has the right of custody over the minor;

2. The rightful custody of the minor is being withheld
from the petitioner by the respondent;
3. That it is to the best interest of the minor concerned to
be in the custody of the petitioner and not that of the
respondent (Sombong v. Court of Appeals, G.R. No.
111876, 31 January 1996).
03-04-04-SC)
• Court of Appeals has jurisdiction to issue writs of habeas
corpus in cases involving custody of minors
• There is nothing in R.A. No. 8369 (Family Courts Act of 1997)

which revoked the Court of Appeals’ jurisdiction to issue writs of
habeas corpus involving the custody of minors (In the Matter of
Application for the Issuance of a Writ of Habeas Corpus: Thornton v.
Thornton, G.R. No. 154598, 16 August 2004). In fact, the Court of
Appeals and Supreme Court have concurrent jurisdiction with family
courts in habeas corpus cases where custody of minors is involved
(Madriňan v. Madriňan, G.R. No. 159374, 12 July 2007).
CHANGE OF NAME
(Rule 102)
DIFFERENCES UNDER RULE 103, R.A. NO. 9048 AND
RULE 108
RULE 103 RULE 108 R.A. 9048
Rule of Law
Cancellation / Correction
Change of Name of Entries in the Civil Clerical Error Act
Registry
Subject Matter
Change of first name or
Change of full name or Cancellation or correction nickname and correction
family name (substantial of civil registry entries of civil registry entries
corrections) (substantial corrections) (only typographical or
clerical errors)
Who May File
Any person interested in Any person having direct
any act, event, or order or and personal interest in
A person desiring to decree concerning the civil the correction of a clerical
change his name status of persons which or typographical error in
has been recorded in the an entry and/or change of
civil register first name or nickname.
RULE 108
RULE 103 RULE 108 R.A. 9048
Venue
1. Local civil registry
office of the city or
municipality where
the record being
sought to be
RTC of the province in RTC of city or
corrected or changed
which petitioner province where the
is kept;
resided for 3 years corresponding civil
2. Local civil registrar
prior to filing registry is located
of the place where
the interested party
is presently residing
or domiciled;
3. Philippine consulate
RULE 108
RULE 103 RULE 108 R.A. 9048
Contents of Petition
1. That petitioner has
been a bona fide
resident of the
province where 1. Facts necessary to
the petition is filed establish the
for at least three merits of the
years prior to the petition;
date of such filing 2. Particular
2. The cause for erroneous
which the change entry/entries
is sought;
3. The name asked
for.
RULE 108
RULE 103 RULE 108 R.A. 9048
Grounds
1. Name is ridiculous, tainted
with dishonour and extremely 1. Name is ridiculous, tainted
difficult to write or pronounce; with dishonour and
2. Consequence of change of extremely difficult to write
status; or pronounce;
3. Necessity to avoid confusion; 2. The new first name or
4. Having continuously used and Upon good nickname has been
been known since childhood and valid habitually and
by a Filipino name, unaware of grounds continuously used by
her alien parentage; petitioner and he has been
5. A sincere desire to adopt a publicly known by that
Filipino name to erase signs of name in the community;
former alienage all in good 3. The change will avoid
faith and without prejudicing confusion.
anybody.
RULE 108
RULE 103 RULE 108 R.A. 9048
Kind of Proceeding
Judicial
(adversarial in
nature because it
Judicial involves substantial Administrative
changes and affects
the status of an
individual)
What to File
Verified petition for
Signed and verified the cancellation or
Affidavit
petition correction of any
entry
RULE 108
RULE 103 RULE 108 R.A. 9048
Notice and Publication
At least once a week At least once a week At least once a week
for 3 consecutive for 3 consecutive for 2 consecutive
weeks in a weeks in a weeks (publish the
newspaper newspaper of whole affidavit) – in
circulation (notice of general circulation change of first name
hearing) (notice of hearing) or nickname
Posting
Duty of the civil
register or Consul to
post petition in a
No posting No posting
conspicuous place
for 10 consecutive
days
RULE 108
RULE 103 RULE 108 R.A. 9048
Who Participates on the Part of the Government
The Solicitor General
or the proper
provincial or city
The civil registrar or
fiscal shall appear on The Civil Registrar
consul
behalf of the
Government of the
Republic
Where to Appeal
Appeal decision to
Appeal decision to Appeal decision to Civil Registrar
CA CA General (head of
NCSO)
GROUNDS FOR CHANGE OF NAME
1. Name is ridiculous, tainted with dishonor and extremely
difficult to write or pronounce;
2. Consequence of change of status;
3. Necessity to avoid confusion;
4. Having continuously used and been known since childhood
by a Filipino name, unaware of her alien parentage;
5. A sincere desire to adopt a Filipino name to erase signs of
former alienage all in good faith and without prejudicing
anybody.
6. When the surname causes embarrassment and there is no
showing that the desired change of name was for a fraudulent
purpose, or that the change of name would prejudice public
interest (Republic v. Court of Appeals, G.R. NO. 88202, 14
December 1998).
Middle Name
• Middle names serve to identify the maternal lineage or
filiation of a person as well as further distinguish him
from others who may have the same given name and
surname as he has. In the case at bar, the only reason
advanced by petitioner for dropping his middle name is
convenience (In re Petition for Change of Name and/or
Correction/Cancellation of Entry of Civil Registry of
Julian Lin Carulasan Wang, G.R. No. 159966, 30 March
2005).
ABSENTEES
PURPOSE OF THE RULE
• The purpose of the rule is to appoint an administrator over
the properties of the absentee. Hence, if absentee left no
properties, such petition is unnecessary (Reyes v.
Alejandro¸G.R. No. L-32026, 16 January 1986).
WHO MAY FILE
• The declaration of absence and appointment of a trustee or
administrative may be applied for by any of the following:
1. The spouse present;

2. The heirs instituted in a will, who may present an
authentic copy of the same;
3. The relatives who would succeed by the law of
intestacy; and
4. Those who have over the property of the absentee
some right subordinated to the condition of his death.
WHEN TO FILE
• After the lapse of two (2) years from disappearance and
without any news about the absentee or since the receipt
of the last news, or of five (5) years in case the absentee
has left a person in charge of the administration of his
property
CANCELLATION OR
CORRECTION OF ENTRIES IN
THE CIVIL REGISTRY
ENTRIES SUBJECT TO CANCELLATION OR CORRECTION
UNDER RULE 108, IN RELATION TO R.A. NO. 9048
• Administrative correction of clerical or

typographical errors
The obvious effect of RA 9048 is merely to make possible

the administrative correction of clerical or typographical
errors or change of first name or nickname in entries in the
civil register, leaving to Rule 108 the correction of
substantial changes in the civil registry in appropriate
adversarial proceedings (Republic v. Benemerito, G.R. No.
146963, 15March 2004).
• Change of name under Rule 108
With respect to the correction in Carlito’s birth certificate of his name
from “Carlito John” to “Carlito,” the same was properly granted under
Rule 108 of the Rules of Court. As correctly pointed out by the CA,
the cancellation or correction of entries involving changes of name
falls under letter “o” of the following provision of Section 2 of Rule
108: “Entries subject to cancellation or correction. — Upon good and
valid grounds, the following entries in the civil register may be
cancelled or corrected: x xx (o) changes of name.” Hence, while the
jurisdictional requirements of Rule 103 (which governs petitions for
change of name) were not complied with, observance of the
provisions of Rule 108 suffices to effect the correction sought for
(Republic v. Kho, G.R. No. 1270340, 28 June 2007).
• No intent on the part of the lawmakers to remove the
authority of the trial courts to make judicial correction
of entries in civil registry
It can thus be concluded that the local civil registrar has primary, not
exclusive, jurisdiction over such petitions for correction of clerical
errors and change of first name or nickname, with R.A. No. 9048
prescribing the procedure that the petitioner and local civil registrar
should follow. Since R.A. No. 9048 refers specifically to the
administrative summary proceeding before the local civil registrar it
would be inappropriate to apply the same procedure to petitions for the
correction of entries in the civil registry before the courts (Re: Final
Report on the Judicial Audit Conducted at the Regional Trial Court, Br.
67, Paniqui, Tarlac, A.M. No. 06-7-414-RTC, 19 October 2007).
• Change of first name is within the primary jurisdiction
of the local civil registrar
RA 9048 now governs the change of first name. It vests the power and
authority to entertain petitions for change of first name to the city or
municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The
intent and effect of the law is to exclude the change of first name from the
coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and
unless an administrative petition for change of name is first filed and
subsequently denied. It likewise lays down the corresponding venue, form,
and procedure. In sum, the remedy and the proceedings regulating change
of first name are primarily administrative in nature, not judicial (Silverio v.
Republic, G.R. No. 1746899, 22 October 2007).
• Change of sex or gender allowed where person has both

male and female sexual characteristics
As for respondent’s change of name under Rule 103, this Court has held
that a change of name is not a matter of right but of judicial discretion,
to be exercised in the light of the reasons adduced and the consequences
that will follow. The trial court’s grant of respondent’s change of name
from Jennifer to Jeff implies a change of a feminine name to a
masculine name. Considering the consequence that respondent’s change
of name merely recognizes his preferred gender, we find merit in
respondent’s change of name. Such a change will conform with the
change of the entry in his birth certificate from female to male (Republic
v. Cagandahan, G.R. No. 166676, 12 September 2008).
• A person’s first name cannot be changed on the ground

of sex reassignment
Petitioner’s basis in praying for the change of his first name was
his sex reassignment. He intended to make his first name
compatible with the sex he thought he transformed himself into
through surgery. However, a change of name does not alter one’s
legal capacity or civil status. RA 9048 does not sanction a change
of first name on the ground of sex reassignment. Rather than
avoiding confusion, changing petitioner’s first name for his
declared purpose may only create grave complications in the civil
registry and the public interest (Silverio v. Republic, G.R. No.
1746899, 22 October 2007).
• No law allows the change of entry in the birth certificate
as to sex on the ground of sex reassignment
To correct simply means "to make or set aright; to remove the faults or
error from" while to change means "to replace something with
something else of the same kind or with something that serves as a
substitute." The birth certificate of petitioner contained no error. All
entries therein, including those corresponding to his first name and sex,
were all correct. No correction is necessary. While petitioner may have
succeeded in altering his body and appearance through the intervention
of modern surgery, no law authorizes the change of entry as to sex in
the civil registry for that reason. Thus, there is no legal basis for his
petition for the correction or change of the entries in his birth certificate
(Silverio v. Republic, G.R. No. 1746899, 22 October 2007).
• Registered name of illegitimate child
An illegitimate child whose filiation is not recognized by the father bears only a
given name and his mother’s surname, and does not have a middle name. The
name of the unrecognized illegitimate child therefore identifies him as such. It
is only when the illegitimate child is legitimated by the subsequent marriage of
his parents or acknowledged by the father in a public document or private
handwritten instrument that he bears both his mother’s surname as his middle
name and his father’s surname as his surname, reflecting his status as a
legitimated child or an acknowledged illegitimate child. Accordingly, the
registration in the civil registry of the birth of such individuals requires that the
middle name be indicated in the certificate. The registered name of a legitimate,
legitimated and recognized illegitimate child thus contains a given or proper
name, a middle name, and a surname (In Re: Petition For Change of Name
and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin
Carulasan Wang v. Cebu City Civil Registrar, G.R. No. 159966, 30 March
2005).
APPEALS IN SPECIAL
PROCEEDINGS
JUDGMENTS AND ORDERS FOR WHICH APPEAL
MAY BE TAKEN
• An interested person may appeal in special proceedings
from an order or judgment rendered by the Regional Trial
Court, where such order or judgment:
a) allows or disallows a will;

b) determines who are the lawful heirs of a deceased person, or
the distributive share of the estate to which such person is
entitled;
c) allows or disallows, in whole or in part, any claim against the
estate of a deceased person, or any claim presented on behalf
of the estate in offset to a claim against it;
JUDGMENTS AND ORDERS FOR WHICH APPEAL
MAY BE TAKEN
d) settles the account of an executor, administrator, trustee or
guardian;
e) constitutes, in proceedings relating to the settlement of the
estate of a deceased person, or the administration of a trustee or
guardian, a final determination in the lower court of the rights
of the party appealing, except that no appeal shall be allowed
from the appointment of a special administrator; and
f) is the final order or judgment rendered in the case, and affects
the substantial rights of the person appealing unless it be an
order granting or denying a motion for a new trial or for
reconsideration.
WHEN TO APPEAL
• In Special Proceedings such as the proceeding for settlement

of estate, the period of appeal from any decision or final
order rendered is 30 days, a notice of appeal and a record on
appeal being required (Pascual v. Robles, G.R. No. 182645,
4 December 2009).
MODES OF APPEAL
• Rules 40, 42, and 45 apply in conformity with Rule 72, Sec.
2 (applicability of civil actions). If it is an ordinary appeal
under Rules 40 and 41, and the special proceedings are
subject to multiple appeals, like settlement of estates, the
appeal is 30 days, a notice of appeal and record on appeal
being required.
RULE ON ADVANCE DISTRIBUTION
• Notwithstanding a pending controversy or appeal in proceedings
to settle the estate of a decedent, the court may, in its discretion
and upon such terms as it may deem proper and just, permit that
such part of the estate may not be affected by the controversy or
appeal be distributed among the heirs or legatees, upon
compliance with the conditions set forth in Rule 90 of this rules
(Rule 109, Sec. 2).
• Rule 90, Section 1 provides: No distribution shall be allowed

until the payment of the obligations has been made or provided
for, unless the distributees, or any of them, give a bond, in a sum
to be fixed by the court, conditioned for the payment of said
obligations within such time as the court directs.

Special Proceedings RSE

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Special Proceedings RSE

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SPECIAL PROCEEDINGS

Atty. Ramon S. Esguerra

• A special proceeding is a remedy by which a party seeks

• Special proceedings are initially non-

2. Actions mentioned in the Family Courts Act of 1997

• In the absence of special rules, the rules

1. Rule 17 of the Rules of Court governing dismissal of

2. Rule 33 regarding judgment on demurrer to

2. Summary Settlement of Estate of Small Value (Rule

3. Judicial Settlement through letters testamentary or

• The determination of which court exercises jurisdiction

• If the decedent is an inhabitant of a foreign country,

• Venue, not Jurisdiction

 Rule 73, Sec 1 prescribing court where decedent’s

• The probate court acquires jurisdiction from the moment

 Robert v. Leonidas (G.R. No. L-55509, 27 April 27 1984)

 Uriate vis-à-vis Cuenco Ruling

 If both spouses have died, the conjugal partnership shall

 A creditor cannot sue surviving spouse of a decedent in

 It can only determine whether or not they should be

 Probate court can only pass upon questions of title

1. Where interested parties are all heirs and rights of

2. Probate court can decide question of ownership

• In the exercise of probate jurisdiction, the court may issue

• Rationale for the Rule on Extrajudicial Settlement

 If several heirs disagree, an ordinary action for

 If only one heir, an affidavit of self-adjudication

 Lack of registration of extrajudicial settlement

• Despite its publication, extrajudicial

• Extra Judicial Settlement – on whom binding

• Whenever the gross value of the estate of a deceased

• The prescriptive period for non-participants is 10

• Exception to prescription of actions:

• Petitioner should realize that the allowance of her husband’s will

• The presentation of a will cannot be dispensed with on the

1. due execution – voluntariness

2. testator’s testamentary capacity – sound mind

3. compliance with formal requisites or solemnities

• Who may petition (Rule 76, Sec. 1)

• When petition may be filed (Rule 76, Sec. 1)

 Delivery of the will is sufficient even if no petition is filed.

• Notice by publication as prerequisite to

• When probate is granted, the judgment is

• Without publication of petition, proceedings for

• Letters of Administration –the appointment issued by a

1. To the surviving husband or wife, as the case may be, or

• A special administrator shall be appointed when:

• New period allowed (Rule, 86, Sec. 2, second sentence):

 Such period once fixed by the court is mandatory. It

 The statute of non-claims supersedes the statute of

Hence, the creditor cannot be permitted to file his claim

1. Claims for money against the decedent arising

2. Claims for funeral expenses and expenses for the

3. Judgment for money against decedent.

• When the action is for recovery of money arising

• Claim for civil liability survives notwithstanding death

• The court may order the executor or administrator to pay to

• On granting letters testamentary or administration the court

• The court may extend the time as the circumstances of the

• When an executor or administrator dies, and a new

• If before the grant of letters testamentary or of

• When there is such a deficiency of assets, and the

• However, the action shall not be commenced until the

• Where the conveyance or attempted conveyance had

• Liquidation refers to the determination of all the

 The intestate proceedings, although closed and

 The prescriptive period is 10 years. An action upon an