Spec Pro

SPECIAL PROCEDINGS
IV. SPECIAL PROCEEDINGS A: It is a remedy by which a party seeks to establish

a status, a right or a particular fact. (Sec. 3(c), Rule
Q: What is Special Proceeding? 1)
NOTE: It is a proceeding in rem.
Q: Distinguish an Ordinary action and Special Civil Action from a special proceeding.
A:
Ordinary Action Special Proceeding Special Civil Action
To protect or enforce a right or Involves the establishment of a Civil Action subject to specific
prevent or redress a wrong right, status, or fact rules.
Involve 2 or more parties plaintiff May involve only one party only Involves two or more parties
and defendant petitioner
Governed by ordinary rules, Governed by special rules, Ordinary rules apply primarily but
supplemented by special rules supplemented by ordinary rules subject to specific rules
Some are initiated by complaint,
Initiated by a complaint, and Initiated by a petition and parties
while some are initiated by
parties respond through an answer respond through an opposition
petition
Heard by courts of general Heard by courts of limited
jurisdiction jurisdiction
Issues or disputes are stated in the
Issues are determined by law
pleadings of the parties
Adversarial Not adversarial
Not based on a cause of action Some special civil action have no
Based on a cause of action
(except habeas Corpus) cause of action
Q: What are the subject matters of special proceedings?
A:
Special Proceeding Jurisdiction Venue
RTC- Gross value of the estate 1. If inhabitant (resident) of the
exceeds 400,000/ 500,000 Philippines (whether citizen
(Manila) or alien)- Court of the
MTC- Gross value of the estate province/ city where the
Settlement of Estate does not exceed 400,000/ deceased resides at the time
Rules 73-90
of Deceased Persons 500,000 of death
NOTE: MTC jurisdiction is exclusive 2. Inhabitant (non- resident) of
of interest, damages of whatever foreign country- court of any
province/ city wherein he had
expenses and costs estate
1. Ordinary escheat proceedings:
RTC
a. If resident- place where the
deceased last resided
b.If non-resident- place where
he had estate
2. Reversion of land to the State for
Rule 91 Escheat RTC violation of the Consitution/
Laws- RTC where the land lies in
whole or in part
3. Unclaimed deposits (for 10
years)- RTC of the city/ province
where the bank is located
NOTE: All banks located in 1 province
where the court is located may be
made party- defendant in 1 action.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UNIVERSITY OF SANTO TOMAS
Facultad de Derecho Civil 163
UST GOLDEN NOTES 2011
RTC-Gross value of the estate Where the will was allowed or

exceeds 400,000/500,000 where the property or portion
Rule 98 Trustees
MTC- does not exceed 400,000/ thereof affected by the trust is
500,000 situated
Hospitalization of Where such insane person may be
Rule 101 RTC
insane person found
Where petitioner resides for 3
Rule 103 Change of name RTC years prior to the filing of the
petition
Cancellation or
Where the corresponding civil
Rule 108 correction of entries RTC
registry is located
in the civil registry
Declaration of Where the absentee resided before
Rule 107 RTC
absence and death his disappearance
A.M. No. Corporate Where principal office of the
RTC
00-8-10-SC rehabilitation corporation is situated
Voluntary dissolution Where principal office of
Rule 104 SEC
of corporation corporation is situated
Administrative Local civil registry office where the
correction of Local civil registry/Consul record is kept/where the interested
RA 9048
entry/change of first general party is presently residing or
name or nickname domiciled
1. If resident- place where
Rules 92-
minor/ incompetent resides
97; A.M. Family Court In case of minors
Guardianship 2. If non-resident- place where
No. 03-02- RTC In cases other than minors
minor/ incompetent has
05-SC
property
A.M. No.
Domestic Adoption Family Court Where the adopter resides
02-06-02-SC
A.M. No. Rescission of
Family Court Where the adoptee resides
02-6-02-SC Adoption
A.M. No. Inter-country Family Court or the Inter-
Where the adopter resides
02-6-02-SC Adoption Country Adoption Board
Where petitioner resides or where
Rule 99 Custody of Minors Family Court
the minor may be found
Judicial Approval of
Voluntary
Rule 105 Family Court Where the child resides
Recognition of Minor
Natural Children
Where the petitioner resides or
Family Summary
Family Court where the child resides if it involves
Code Proceedings
minors
Actions mentioned in the Family Courts Act
1. Petitions on
Foster care and
Temporary
Where petitioner or respondent
Custody
has been residing for at least 6
2. Declaration of
R.A. 8369 months prior to the date of filing
Nullity of
Family Court In case of non-resident
Marriage
respondent, where he may be
3. Cases of
found at the election of the
Domestic
petitioner
Violence Against
Women and
Children
SC, CA, RTC, MTC in the province
or city in case there is no RTC Where the aggrieved party is
Rule 102 Habeas Corpus
judge; SB only in aid of its detained (RTC)
appellate jurisdiction
164 REMEDIAL LAW TEAM:

ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
SPECIAL PROCEDINGS
A.M. No. Habeas Corpus in

Where the petitioner resides or
03-04-04- Relation to Custody of Family Court, CA, SC
where the minor may be found
SC Minors
Where the threat, act or omission
A.M. No. RTC, SB, CA or SC or any justice
Writ of Amparo was committed or any of its
07-9-12-SC thereof
elements occurred
Where the petitioner or
respondent resides, or that which
A.M. No. RTC, SB, CA or SC or any justice has jurisdiction over the place
Writ of habeas data
08-1-16-SC thereof where the data or information is
gathered, collected or stored, at
the option of the petitioner
A.M. No. Where the unlawful act, omission
Writ of Kalikasan SC or any stations of CA
09-6-8-SC or threat was committed
Declaration of nullity
A.M. months prior to the date of filing
of void
No.02-11- Family Court In case of non-resident
marriage/Annulment
10-SC respondent, where he may be
of marriage
petitioner
A.M. No. months prior to the date of filing
02-11-11- Legal Separation Family Court In case of non-resident
SC respondent, where he may be
petitioner
Q: What is the publication requirement in special proceedings?
A:
Special Proceeding Publication of Order of Hearing
Administra ve change of rst name or nickname
Once a week for 2 consecutive weeks
Corporate rehabilita on
Se lement of estate of deceased persons
Judicial change of name
Judicial cancella on or correc on of entries in the civil
registry
Domes c adop on
Inter-country adop on
Voluntary dissolu on of corpora on
(Except shortening of corporate term)
Note: The declaration of absence shall not take effect
Declara on of absence
until six (6) months after its publication in a newspaper
of general circulation.
Escheat Once a week for 6 consecutive weeks
Guardianship
Trustees
Custody of minors
Hospitaliza on of insane person
Rescission of adop on
Administra ve cancella on or correc on of entries
None
Habeas corpus
Writ of amparo
Writ of habeas data
Writ of kalikasan
1. Pe ons on foster care and temporary custody
2. Cases of domes c violence against women and
children
Summary proceedings
Note: In declaration of nullity or annulment of marriage or legal separation, service of summons may be through
publication once a week for 2 consecutive weeks.
Q: Who should be notified in special proceedings?
A:
Special proceeding To whom notice must be given
Se lement of estate of deceased persons Executor/administrator/any interested party
Trustees All persons interested on the trust
On the person alleged to be insane and to the one having
Hospitaliza on of insane person
charge of him or any of his relatives
Judicial change of name Interested parties/Solicitor General
Judicial cancella on or correc on of entries in the civil Persons named in the petition/Solicitor General/Civil
registry Registrar impleaded as respondent
Heirs/legatees/devisees/creditors/other interested
Declara on of absence and death
persons
Corporate rehabilita on Creditors/Debtors
Voluntary dissolu on of corpora on Creditors
Administra ve correc on of entry/ change of rst name
Interested parties
or nickname
The minor if above 14 years of age/incompetent
Guardianship himself/Interested parties on the property of the ward.
General or special notice may be given.
Domes c Adop on Biological parents/Solicitor General
Rescission of Adop on Adopter
Inter-country Adop on Biological parents, if any/guardian
Custody of Minors Biological parents/guardian if any
Habeas corpus To the person to which the writ is directed
Writ of amparo Respondent
Writ of habeas data Respondent
Writ of kalikasan Respondent
Summary proceedings Respondent and interested party
1. Pe ons on foster care and temporary custody
2. Cases of domes c violence against women and Solicitor General/Public Prosecutor
children
Declara on of nullity of void marriage / Annulment of
City/Provincial Prosecutor/ Respondent
marriage
Legal separa on City/Provincial prosecutor/ Respondent
Escheat None
A. SETTLEMENT OF ESTATE OF DECEASED Q: State the rule on venue in judicial settlement of

PERSONS, VENUE AND PROCESSES estate of deceased persons.
1. WHICH COURT HAS JURISDICTION A:

Resident Non-Resident
Q: Which court has jurisdiction over the estate of Court of the province/city
the deceased? where the deceased Court of the province/city
resided at the time of wherein he had the
A: death, whether a citizen estate
Regional Trial Court Metropolitan Trial Court or alien
Gross value of the estate
Gross value of the estate
exceeds 500,000 (within
does not exceed
Metro Manila) or 400,000
500,000/400,00
(outside Metro Manila)

SPECIAL PROCEDINGS
2. VENUE IN JUDICIAL SETTLEMENT OF ESTATE v. Santiago, L- 1723, May 30, 1949); or by filing
another petition for settlement in a proper
Q: What is venue? court of concurrent venue (De Borja v. Tan, 77
Phil 872).
A: Under the Rules of Court, the province where the
estate of the deceased shall be settled (Cuenco v. XPN: Estoppel by Laches
CA, G.R. No. L-24742, October 26, 1973)
Note: The rule applies to both testate and intestate
proceedings.
Q: Is venue waivable?
3. EXTENT OF JURISDICTION OF PROBATE COURT
A: Yes. Wrong venue is a waivable procedural
defect, and such waiver may occur by laches where Q: May probate courts determine issues of
a party had been served notice of the filing of the ownership in a proceeding for the settlement of
probate petition for a year and allowed the estate of decedent? Explain.
proceedings to continue for such time before filing
a motion to dismiss. A:
GR: No, because probate courts are courts of
Note: Jurisdiction under Rule 73 does not relate to limited jurisdiction.
jurisdiction per se but to venue. Hence institution in
the court where the decedent is neither an inhabitant XPNS:
nor had his estate may be waived (Uriarte v. CFI, G.R. 1. Provisionally, for the sole purpose of
Nos. L-21938-39, May 29, 1970). including the property in the inventory,
without prejudice to its final
Q: What constitutes residence?
determination in a separate action;
2. When all the parties are heirs of the
A: It is the personal, actual, physical habitation, his
decedent and they agreed to submit the
actual residence or place of abode (Fule v. CA, G.R.
issue of ownership to the probate court,
No. L-40502, Nov. 29, 1976) and not his permanent
provided that no rights of third persons
legal residence or domicile.
are prejudiced;
Note: MTC jurisdiction is exclusive of interest, 3. If the question is one of collation or
advancement; or
expenses and costs. 4. If the parties consent to the assumption
of jurisdiction by the probate court and
Q: What is the remedy if Venue is improperly laid? no rights of third parties are prejudiced.
(Agpalo, Handbook on Special
A: Proceedings, pp. 10-12, 2003 ed.)
GR: ORDINARY APPEAL should be filed, not
certiorari or mandamus. Q: The probate court ordered the inclusion of a
parcel of land registered in the name of Richard in
XPN: CERTIORARI OR MANDAMUS should be the inventory of the properties of the deceased
filed when want of jurisdiction appear on the Anna. Richard opposed the inclusion arguing that
record of the case. the probate court cannot determine the issue of
the ownership of the parcel of land inasmuch as
Q: What is the Principle of Preferential the same was registered in his name. Is Richard
Jurisdiction? correct?
A: A: Yes. In probate proceedings, if a property

GR: The court first taking cognizance of the covered by Torrens title is involved, the
settlement of the estate of the decedent shall presumptive conclusiveness of such title should be
exercise jurisdiction to the exclusion of all given due weight, and in the absence of strong
other courts (Sec. 1 of Rule 73.) compelling evidence to the contrary, the holder
thereof should be considered as the owner of the
The probate court acquires jurisdiction from property in controversy until his title is nullified or
the moment the petition for the settlement of modified in an appropriate ordinary action,
estate is filed with said court. It cannot be particularly, when as in the case at bar, possession
divested of such jurisdiction by the subsequent of the property itself is in the persons named in the
acts of the parties as by entering into title (Luy Lim v. CA, G.R. No. 124715, Jan. 24, 2000).
extrajudicial partition of the estate (Sandoval

Q: What may the court do in the exercise of its Q: Where should the estate be settled if the
probate jurisdiction? marriage is dissolved by death of either spouse or
both?
A: It may issue warrants and processes to compel
the attendance of witnesses or carry into effect A: When the marriage is dissolved by the death of
their orders and judgments and all other powers the husband or wife, the community property shall
granted them by law. (Sec. 3, Rule 73) be inventoried, administered and liquidated, and
the debts thereof paid, in the testate or intestate
Q: May the probate court issue a writ of proceedings of the deceased spouse. If both
execution? spouses have died, the conjugal partnership shall be
liquidated in the testate or intestate proceedings of
A: either. (Sec. 2, Rule 73)
GR: No, because its orders usually refer to the Note: If separate proceedings have been instituted for
adjudication of claims against the estate which each estate, both proceedings may be consolidated if
the executor or administrator may satisfy they were filed in the same court.
without the necessity of resorting to a writ of
execution. The rule on consolidation in settlement proceedings
for husband and wife exclusively applies to them. It
XPNS: does not apply to siblings, parents and child or
1. To satisfy the contributive share of the other relatives no matter how close. (Benigno v. de
devisees, legatees and heirs when the la Pea, G.R. No. L-38036, Oct. 15, 1932)
latter had entered prior possession over
the estate (Sec. 6, Rule 88); Notes:
2. To enforce payment of the expenses of 1. The jurisdiction of a court as well as the
concomitant nature of the action is
partition (Sec. 3, Rule 90); and
determined by the averments in the
3. To satisfy the costs when a person is cited
complaint and not by the defenses
for examination in probate proceedings
contained in the answer. (Vda. De Manalo v.
(Sec. 13, Rule 142; De Valera v. Hon. CA, 349 SCRA 135).
Ofilada, G.R. No. L-27526, Sept. 19, 1974). 2. The residence of the deceased or the
4. To satisfy the claim in a summary location of his estate is not an element of
proceedings of creditors or heirs who jurisdiction over the subject matter but
appear within two years from merely of venue (Cuenca v. CA 53 SCRA 360,
distribution. 1973.)
3. Testate proceedings take precedence over
Q: Can a declaration of heirship be made in an intestate proceedings for the same estate. If
independent action? in the course of the intestate proceedings, it
is found that the decedent had left a last
A: will, proceedings for the probate of the
1. If the special proceedings are pending, or latter should replace the intestate
if there are no special proceedings filed proceedings even if at that state, an
but there is a need to file one, then the administrator had already been appointed
determination of heirship should be (Uriarte v. CFI, 33 SCRA 252, 1970.)
raised and settled in said special 4. Mere discovery of a document purporting to
proceedings. be the last will and testament of decedent
after appointment of an administrator does
2. If the special proceeding had been
not ipso facto nullify the letters of
instituted but had been finally closed and
administration already issued until the will
terminated, or if a putative heir has lost
has been proven and allowed (Advincula v.
the right to have himself declared in the Teodoro, 99 Phil 413).
special proceedings as co-heir and he can
no longer ask for its re-opening, then an 4. POWERS AND DUTIES OF PROBATE COURT
ordinary civil action can be filed for his
declaration as heir in order to bring about Q: What are the powers and duties of a Probate
the annulment of the partition or Court?
distribution or adjudication of properties
belonging to the estate of the deceased A: In probate proceedings, the court:
(Portugal and Portugal, Jr. v. Portugal-
Beltran, G.R. No. 155555, Aug. 16, 2005). 1. Orders the probate of the will of the
decedent
2. Grants letters administration

SPECIAL PROCEDINGS
3. Supervises and controls all acts of Allowed only in intestate Allowed in both testate
administration succession and intestate succession
4. Hears and approves claims against the There must be no Available even if there
estate of the deceased outstanding debts of the are debts, it is the court
5. Orders payment of lawful debts estate at the time of the which will make provision
6. Authorizes sale, mortgage or any settlement for its payment
encumbrance of real estate Resorted at the instance May be instituted by any
7. Orders the payment of taxes and other and by agreement of all interested party even a
charges heirs creditor of the estate
8. Directs the delivery of the estate to those without the consent of all
entitled thereto. the heirs
Note: The court acts as a trustee and as such must Amount of bond is equal Amount of bond is to be
jealously guard the estate and see to it that it is wisely to the value of personal determined by the court
and economically administered, not dissipated. property
Q: What are the powers and duties of a probate Q: Distinguish the procedure in extrajudicial
court? settlement from summary settlement
A: A:
To pass upon the issue regarding: A. EXTRAJUDICIAL SETTLEMENT BY
1. Validity of the will (i.e. formalities
AGREEMENT BETWEEN THE HEIRS
required by law)
2. Distribute shares
3. Determine who are the legal heirs Division of estate made through a public
instrument or affidavit of adjudication
4. Issue warrants and processes to secure
attendance of witnesses
5. Determine and rule upon issues relating Filing of the public instrument or affidavit of
to settlement of the estate, such as adjudication with the proper Register of Deeds
administration, liquidation, and
distribution of the estate
Publication of notice of the fact of extrajudicial
6. Determine the following: settlement once a week for three consecutive
a. Heirs of the decedent; weeks in a newspaper of general circulation
b. Recognition of natural child;
c. Validity of disinheritance effected by
testator;
Personal property- file a bond equivalent to its
d. Status of a woman who claims to be
amount.
the lawful wife of the decedent ; Real property- subject to a lien in favor of the
e. Validity if waiver of hereditary heirs; creditors, heirs or other persons for the full period
f. Status of each heir; of 2 years from such distribution and such lien
g. Whatever property in the inventory is cannot be substituted by a bond
conjugal or exclusive property of
deceased spouse; or
h. Matters incidental or collateral to the
settlement and distribution of the
estate.
B. SUMMARY SETTLEMENT OF ESTATES
1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT

BETWEEN HEIRS, WHEN ALLOWED
EXTRA JUDICIAL
SUMMARY SETTLEMENT
SETTLEMENT BY
OF ESTATE OF SMALL
AGREEMENT BETWEEN
VALUE
HEIRS
No court intervention Requires summary
adjudication
The value of the estate is Gross value of the estate
immaterial must not exceed P10,000

B. SUMMARY SETTLEMENT OF ESTATE OF

SMALL VALUE Note: While the Rules of Court provide that the
Petition for summary settlement to be filed in the decedent must not have left any debts, it is sufficient if
MTC with an allegation that the gross value of the any debts he may have left have been paid at the time
estate, whether he died testate or intestate does the extrajudicial settlement is entered into (Guico v.
not exceed P10,000 Bautista, G.R. No. L-14921, Dec. 31, 1960). It is a
disputable presumption that the decedent left no
debts if no creditor files a petition for letters of
Publication of notice once a week for 3 consecutive administration within two years after the death of the
weeks; court may likewise order that notice be decedent.
given to persons as the court may direct
Q: What is a bond?
Hearing to be held not less than 1 month nor more A: It is the value of the personal property certified
than 3 months from the date of last publication of by the parties under oath and conditioned upon
notice payment of just claims under Section 4, Rule 74.
Note: The amount of bond required under Section 2 is

determined by the COURT whereas in Section 1 the
The court proceeds summarily without the amount is EQUAL TO THE VALUE OF THE PERSONAL
necessity of appointing an executor or
PROPERTY as established by adjudication.
administrator; and to make orders as may be
necessary
Q: When is a bond required to be filed in
The court may also require a bond in an amount
extrajudicial settlement of estate?
fixed by the court (not value of personal property)
conditioned upon payment of just claims under
Section 4 A: When personal property is involved, a bond is
required. On the other hand, if it is a real property,
it is subject to a lien in favor of a creditor for 2 years
Q: When is extra judicial settlement by agreement
from distribution and such lien cannot be
between the heirs allowed? (Substantial
substituted by a bond. (Sec. 1, Rule 74)
Requisites)
Note: The same provision on the bond and lien also
A:
applies in summary settlement of estate. (Sec. 2,
When the decedent:
Rule 74)
1. Left no will and no debts; and the heirs Q: Is a public instrument necessary for the validity
are all of age; and
of the extrajudicial settlement?
2. Of the minors are represented by their
judicial or legal representatives duly A: No, the requirement of public instrument is not
authorized for the purpose. constitutive of the validity but is merely evidentiary
in nature (Hernandez v. Andal, G.R. No. L-273, Mar.
Q: What are the requisites before an extrajudicial 23, 1947). Even a private instrument, oral
settlement of estate could be resorted as evidence agreement of partition or compromise agreement
of its validity? (Procedural Requisites) entered into without previous authority from the
court is valid. However, reformation of the
A: instrument may be compelled.
1. Settlement is made in a public instrument
or by affidavit of adjudication in the case Note: Public instrument is required in transfer and
of a sole heir; registration of title to the heirs.
Note: In case of disagreement of heirs, they Q: What is the effect of an extra-judicial partition
may state their oppositions in an ordinary executed without the knowledge and consent of
action of partition. the other co-heirs?
2. Filed with the Register of Deeds; A: It shall not prejudice the co-heir who had no
3. Fact of settlement must be published in a knowledge nor consented to the same. He shall
newspaper of general circulation once a have the right to vindicate his inheritance. Such heir
week for 3 consecutive weeks; and or such other person deprived of his lawful
4. Bond filed equivalent to the value of participation payable in money may compel the
personal property. (Sec. 1, Rule 74) settlement of the estate in courts for the purpose

SPECIAL PROCEDINGS
of satisfying such lawful participation. (Sec. 4, Rule 3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE

74) HEIR
Q: Why is publication of the extrajudicial Q: What is an Affidavit of Self-Adjudication by sole

settlement necessary? heir?
A: To notify and bind the whole world of the A: It is an affidavit required by Sec.1, Rule 74 to be
extrajudicial settlement and give the concerned executed by the sole heir or a deceased person in
parties a chance to come forward and challenge the adjudicating to himself the entire estate left by the
same (Sec. 1, Rule 74). decedent.
Note: Publication alone does not suffice to bind the 4. SUMMARY SETTLEMENT OF ESTATES OF SMALL
excluded heirs to the extrajudicial settlement VALUE
unless he did not participate in the proceedings.
Q: What is summary settlement of estate?
Q: What is the effect if the provisions on notice or
participation requirement under Sec. 1, Rule 74 A: It is a judicial proceeding, without appointment
have been strictly complied with? of executor or administrator, and without delay, the
competent court summarily proceeds to estimate
A: It bars distributees or heirs from objecting to an the value of estate of the decedent; allow his will if
extra-judicial partition after the two-year any; declare his heirs, devisees, and legatees;
prescriptive period to question such partition. (Sec. distribute his net estate among them, who shall
4, Rule 74) thereupon be entitled to receive and enter into the
possession of the parts of the estate so awarded to
2. TWO-YEAR PRESCRIPTIVE PERIOD them, respectively.
Q: When does the two year period rule apply? Q: Summary settlement of estates of small value,
when is it allowed?
A: After the expiration of two years from the
extrajudicial partition, distributees or heirs are A: Only when gross estate does not exceed
barred from objecting to an extrajudicial partition. P10,000. Amount is jurisdictional. (Sec. 2, Rule 74)
The two year prescriptive period applies only:
Notes:
1. To persons who have participated or 1. Amount is jurisdictional;
taken part or had notice of the 2. Summary settlement of estate of small value
extrajudicial partition; and is allowed in both testate and intestate
2. When all the persons or heirs of the estates;
decedent have taken part in the 3. Available even if there are debts as the court
extrajudicial settlement or are will make provisions for the payment
represented by themselves or through thereof.
their guardians. 4. In accordance with B.P. Blg. 129, the
jurisdiction is vested to the Municipal Trial
Note: It is only a bar against the parties who had not Courts.
taken part in the extrajudicial proceedings, but not 5. Instituted by any interested party and even
against third persons not parties thereto. (Herrera, by a dredirtor of the estate, without the
Remedial Law III-A, 39) consent of all the heirs.
6. The date for hearing, shall be set by court
not less than 1 month nor more than 3
Q: Does the two year period apply for a claim of
months from date of publication of last
minor or incapacitated person?
notice and the order of hearing be published
once a week for 3 consecutive weeks in a
A: If on the date of the expiration of the period of newspaper of general circulation.
two years prescribed, the person authorized to file 7. Notice shall be served upon such interested
a claim is a minor or mentally incapacitated, or is in persons as the court may direct.
prison or outside the Philippines, he may present 8. Bond in an amount fixed by the court (not
his claim within one year after such disability is value of the personal property) conditioned
removed. (Sec. 5, Rule 74) upon payment of just claims under sec. 4.

Q: When can settlement of estates in courts be 2. The existence of debts against the estate;
compelled? 3. If there is undue deprivation of lawful
participation payable in money. (Sec. 4,
A: Rule 74)
1. If there is undue deprivation of lawful
participation in the estate;
5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE
Q: What are the remedies of the aggrieved party in summary or extrajudicial settlement of the estate?
A:
CLAIM AGAINST THE BOND OR GROUNDS: (Section 4, Rule 74)
REAL ESTATE a. If there is undue deprivation of lawful participation in the estate;
b. Existence of debts against the estate.
Should be brought within 2 years after settlement and distribution of the estate
COMPEL THE SETTLEMENT OF
ESTATE IN COURTS Should be brought within 2 years after settlement and distribution of the estate
ACTION FOR RESCISSION It must be availed of within 5 years from the time the right of action accrues.
(Art. 1149, NCC)
Also applicable in judicial proceedings
ACTION FOR RECONVEYANCE OF GR: It is based on an implied or constructive trust which prescribes in 10 years
REAL PROPERTY from the date of registration or date of issuance of certificate of title or from
actual discovery of fraud if the registration was made in bad faith.
XPN: If the plaintiff is in possession of the property and did not pass to innocent
purchaser for value and good faith, action is imprescriptible. (Marquez v. CA,
G.R. No. 125715, Dec. 29, 1998) Also applicable in judicial proceedings.
REOPENING BY INTERVENTION IN Upon motion of a person who either:
SUMMARY SETTLEMENT a. Has a legal interest in the matter in litigation;
b. Has such legal interest in the success of either of the parties, or an interest
against both; or
c. Is so situated as to be adversely affected by the distribution of property in
the custody of the court or of an officer.
Note: May be availed of after judgment but before its finality or appeal by the
aggrieved party.
PETITION FOR RELIEF (SUMMARY On grounds of fraud, accident, mistake, and excusable negligence within 60 days
SETTLEMENT) after petitioner learns of the judgment, final order or other proceeding to be set
aside, and not more than 6 months after such judgment or final order was
entered. (Rule 38.) Also applicable in judicial proceedings.
ACTION TO ANNUL A DEED OF On the ground of fraud which should be filed within 4 years from the discovery
EXTRAJUDICIAL SETTLEMENT OR of fraud.
JUDGMENT IN SUMMARY
SETTLEMENT
ORDINARY ACTION BUT NOT If the order of closure has already become final and executory, the heir must file
AGAINST THE BOND an independent civil action of accion reinvidicatoria to recover his deprived
share.
Note: It must be brought within 10 years from the time the right of action
accrues. [Art. 1144(c)]
Also applicable in judicial proceedings.
After the lapse of two years an ordinary action may be instituted against the
distributees within the statute of limitations but not against the bond.

SPECIAL PROCEDINGS
C. PRODUCTION AND PROBATE OF WILL anxiety; as in the case of absolute

preterition (Nuguid v. Nuguid, G.R. No. L-
1. NATURE OF PROBATE PROCEEDING 23445, June 23, 1966).
2. Where the entire or all testamentary
Q: What is probate? dispositions are void and where the
defect is apparent on its face
A: Probate is the act of proving before a competent (Nepomuceno v. CA, G.R. No. L-62952,
court the due execution of a will by a person Oct. 9, 1985).
possessed of testamentary capacity, as well as the
approval thereof by said court, (also known as Note: Principle does not apply where the
Allowance of Will). meat of the controversy is not the
intrinsic validity of the will.
Q: Why is probate necessary?
NOTE: The decree of probate is conclusive with respect
A: To settle all questions concerning the capacity of to the due execution of the will and it cannot be
the testator and the proper execution of his will, impugned on any of the grounds authorized by law,
irrespective of whether its provisions are valid and except by fraud, in any separate or independent action
enforceable. (Fernandez v. Dimagiba, G.R. No. L- or proceeding.
23638, Oct. 12, 1967)
2. WHO MAY PETITION FOR PROBATE
Q: What is the nature of a probate proceeding?
Q: Who may file petition for allowance of will?
A:
1. IN REM- It is binding upon the whole world. A:
1. Executor (Sec. 1, Rule 76);
2. MANDATORY- No will shall pass either real or 2. Devisee or legatee named in the will (Sec.
personal property unless it is proved and allowed in 1, Rule 76);
the proper court. 3. Person interested in the estate; e.g. heirs
Note: However, a will may be sustained on the basis of Note: An interested party is one who would
Article 108 be benefited by the estate, such as an heir,
testator should make a partition of his property by an or one who has a claim against the estate
act intervivos or by will, such partition shall stand in so such as a creditor. (Sumilang v. Ramagosa,
far as it does not prejudice the legitime of the forced G.R. No. L-23135, Dec. 26, 1967)
heir. (Mang- Oy v. CA, L-27421, 1986)
4. Testator himself during his lifetime (Sec.
3. IMPRESCRIPTIBLE- because of the public policy 1, Rule 76); or
to obey the will of the testator 5. Any creditor as preparatory step for
filing of his claim therein.
4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the
probate of the will is mandatory. The presentation Q: Who are the people entitled to notice in a
and probate of the will is required by public policy. probate hearing?
It involves public interest. (Fernandez v. Dimagiba,
L- 23638, 1967) A:
1. Designated or known heirs, legatees and
Q: Does the probate court look into the intrinsic devisees of the testator resident in the
validity of the will? Philippines at their places of residence, at
least 20 days before the hearing, if such
A: places of residence be known.
GR: The jurisdiction of probate court is limited 2. Person named executor, if he not the
to the examination and resolution of the petitioner.
extrinsic validity of a will. 3. To any person named as co-executor not
petitioning, if their places of residence be
XPNS: Principle of practical considerations known.
wherein the court may pass upon the intrinsic 4. If the testator asks for the allowance of
validity of the will: his own will, notice shall be sent only to
his compulsory heirs. (Sec. 4, Rule 76)
1. If the case where to be remanded for
probate of the will, it will result to waste
of time, effort, expense, plus added
D. ALLOWANCE OR DISALLOWANCE OF A WILL At least one The will shall be

witness who allowed if at least
1. CONTENTS OF PETITION FOR ALLOWANCE FOR knows the three witnesses
WILL handwriting and who know the
signature of the handwriting of
Q: What are the contents of a petition for Holographic testator explicitly the testator
allowance of a will? will declares that the explicitly declare
will and that the will and
A: signature are in signature are in
the handwriting the handwriting
1. Jurisdictional facts:
of the testator. of the testator.
I. death of the testator and
(Sec. 5, Rule 76) (Sec. 11, Rule 76)
II. his residence at the time of his death
III. if non- resident, the province where the
Note: At the hearing, compliance with publication and
estate was left notice must first be shown before the introduction of
2. The names, ages and residences of the testimony in support of the will.
heirs, legatees and devisees of the testator
or decedent. In the absence of competent witness, and if the
3. The probable value and character of the court deems it necessary, expert testimony may be
property of the estate. resorted to. (Sec. 5, Rule 76)
4. The name of the persons for whom letters
are prayed. Q: What is the remedy if none of the subscribing
5. The name of the person having custody of witnesses resides in the province where probate is
the will if it has not been delivered to the being conducted?
court.
NOTE: But no defect in the petition shall render void A: A motion for taking of deposition of one or more
the allowance of the will or the issuance of letters of them. (Sec. 7, Rule 76)
testamentary or of administration with the will
annexed. Note: Court may also authorize photographic copy of
the will to be made and to be presented to the witness
Q: What is the effect of the allowance of a will? on his examination, who may be asked questions with
respect to matters pertaining to the will. (Sec. 7, Rule
A: The judgment or decree of the court allowing the 76)
will is:
Q: What are the instances when the court may
1.Conclusive as to its extrinsic validity; admit the testimony of witnesses other than the
2.Not subject to collateral attack and it subscribing witnesses?
stands as final, if not modified, set aside,
or revoked by a direct proceeding, or A:
reversed on appeal by a higher court; and 1. The subscribing witnesses are dead or
3. Conclusive on the whole world. (Yuseco v. insane; or
CA, G.R. Nos. L-40719-21, Dec. 29, 1975) 2. None of them resides in the Philippines.
Q: How should a will be proved? (Sec. 8, Rule 76)
A: Q: What matters shall be testified on by the other

Uncontested Contested witnesses?
The court may A:

grant allowance 1. The sanity of the testator; and
thereof on the 2. Due execution of the will.
All the subscribing
testimony of one
witnesses and the
of the Note: The court may admit proof of handwriting of the
notary public
subscribing testator and of the subscribing witnesses, or any of
Notarial must testify as to
witnesses only, if them. (Sec. 8, Rule 76)
will due execution and
such witness
attestation of the
testifies that the
will. (Sec. 11, Rule
will was
76)
executed as is
required by law.
(Sec. 5, Rule 76)

SPECIAL PROCEDINGS
Q: What proof is necessary if the testator himself 2. If the testator was insane, or otherwise
files the petition for probate of his holographic will mentally incapable to make a will, at the
and no contest is filed? time of its execution;
3. If it was executed under duress, influence
A: The fact that he affirms that the holographic will of fear, or threats;
and the signature are in his own handwriting shall 4. If it was procured by undue and improper
be sufficient evidence of the genuineness and due pressure or influence, on the part of the
execution thereof. (Sec. 12, Rule 76) beneficiary, or of some other person for
his benefit; or
Q: What if the holographic will is contested? 5. If the signature of the testator was
procured by fraud or trick, and he did not
A: If the holographic will is contested, the burden of intend that the instrument should be his
disproving the genuiness and due execution thereof will at the time of fixing his signature
shall be on the contestant. The testator may, in his thereto. (Sec. 9, Rule 76)
turn, present such additional proof as may be
necessary to rebut the evidence for the contestant. Q: What is the Substantial Compliance Rule?
(Sec. 12, Rule 76)
A: If the will has been executed in substantial
Q: What is the rule on proof of lost or destroyed compliance with the formalities of the law, and the
will? possibility of bad faith and farud is obviated, said
will should be admitted to probate (Art. 809, New
A: If notarial will, it may be proven by a photostatic
Civil Code).
or xerox copy of the will coupled with the
testimonies of the attesting witnesses.
3. REPROBATE; REQUISITES BEFORE WILL PROVED
OUTSIDE ALLOWED IN THE PHILIPPINES; EFFECT
If holographic will, a photostatic copy or
exerox copy of the lost will would not suffice.
Q: What is reprobate?
But if there are no other copies available then
a photostatic or xerox copy would suffice to
A: It is a special proceeding to establish the validity
serve as a comparison to the standard
of a will proved in a foreign country.
writings of the testator. No testimonies of
witnesses is allowed because the will was Q: What are the requisites before a will proven
made entirely by the testator himself. (Bonilla outside the Philippines be allowed here?
vs. Aranz, G.R. No. L-58509, Dec. 7, 1982)
A:
Q: What are the requisites for allowance of a lost 1. The testator was domiciled in a foreign
or destroyed will? country;
2. The will has been admitted to probate in
A: No will shall be proved as a lost or destroyed will
such country;
unless:
3. The foreign court is, under the laws of
1. Its execution and validity of the same
said foreign country, a probate court with
must be established;
jurisdiction over the proceedings;
2. It must have been in existence at the time
4. Proof of compliance with the law on
of the death of the testator, or is shown
probate procedure in said foreign
to have been fraudulently or accidentally
country;
destroyed during the lifetime of the
5. The legal requirements in said foreign
testator without his knowledge; and
country for the valid execution of the will
3. Its provisions must be clearly and
have been complied with;
distinctly proved by at least 2 credible
6. Filing a petition in the Philippines with
witnesses (Sec. 6)
copy of the will and of its decree of
allowance; and
2. GROUNDS FOR DISALLOWING A WILL
7. Notice and hearing. (PCIB v. Escolin, G.R.
No. 76714, June 2, 1994)
Q: What are the grounds for disallowance of will?
Note: Under the doctrine of processual presumption,
A:
there must be evidence to prove the existence of
1. If not executed and attested as required foreign law, otherwise the court should presume that
by law; the law of the foreign country is the same as Philippine
laws.

Q: What are the effects of probate? 2. Non-resident of the Philippines; and

3. Those who, in the opinion of the court,
A: are unfit to execute the duties of the trust
1. The will shall have the same effect as if by reason of drunkenness, improvidence,
originally proved and allowed in the want of understanding or integrity, or
Philippines (Sec. 3, Rule 77); conviction of an offense involving moral
2. Letters testamentary or administration turpitude (Sec. 1, Rule 78).
with a will annexed shall extend to all
estates of the testator in the Philippines Q: What authority is issued to the person who
(Sec. 4, Rule 77); and administers the estate?
3. Such estate, after the payment of just
debts and expenses of administration, A:
shall be disposed of according to the will, 1. Letters testamentary authority issued to
so far as such will, may operate upon it, an executor named in the will to
and the residue, if any, shall be disposed administer the estate;
of as provided by law in cases of estates 2. Letters of administration authority
in the Philippines belonging to persons issued by the court to a competent
who are inhabitants of another country person to administer the estate of the
(Sec. 4, Rule 77). deceased who died intestate; or
3. Letters of administration with a will
E. LETTERS TESTAMENTARY AND OF annexed authority issued by the court
ADMINISTRATION to a competent person to administer the
estate of the deceased if the executor
1. WHEN AND TO WHOM THE LETTERS OF named in the will refused to accept the
ADMINISTRATION GRANTED office, or is incompetent.
Q: Who can administer the estate? 2. ORDER OF PREFERENCE
A: Q: State the order of preference in granting letters

1. Executor named by the testator in his of administration. (to whom letters are granted)
will for the administration of his property
after his death; A: If no executor is named in the will, or the
2. Administrator appointed by the court in executors are incompetent, refuse the trust, or fail
accordance with the Rules or governing to give the bond, or a person dies intestate,
statutes to administer and settle the administration shall be granted to:
intestate testate; or
3. Administrator with a will annexed 1. The surviving spouse or next of kin, or
appointed by the court in cases when, both, in the discretion of the court, or to
although there is a will, the will does not such person as such surviving spouse or
appoint any executor, or if appointed, next of kin, requests to have appointed, if
said person is either incapacitated or competent and willing to serve
unwilling to serve as such. 2. The principal creditors, if competent and
willing to serve, if the surviving spouse or
Q: Who may serve as executor or administrator? next of kin, or the person selected by
them be incompetent or unwilling or if
A: Any competent person may serve as executor or the surviving spouse or next of kin
administrator. There may be several executors neglects for 30 days after the death of the
named in the will. Letters testamentary may issue person to apply for administration or to
to such of them as are competent, accept and give request that administration be granted to
bond. (Sec. 4, Rule 78) some other person
3. Such other person as the court may select
Note: If the named executor does not qualify, then an if there is no such creditor competent and
administrator may be appointed. (Sec. 6, Rule 78) willing to serve. (Sec. 6)
Q: Who are incompetent to serve as executor or NOTE: Order of preference may be disregarded for a
administrator? valid cause.
A:
1. Minor;

SPECIAL PROCEDINGS
Note: Co-administrators may be appointed for the 1. Incompetency of the person for whom
benefit of the estate and those interested therein letters are prayed therein; or
(Matute v. CA, G.R. No. 26751, Jan. 31, 1969). 2. Contestant's own right to the
administration (Sec. 4, Rule 79).
Q: What is the rationale behind the order of
preference in appointing an administrator? Note: Letters of administration may be granted to any
qualified applicant, though it appears that there are
A: The underlying assumption behind this rule is other competent persons having better right to the
that those who will reap the benefits of a wise, administration, if such persons fail to appear when
speedy and economical administration of the estate notified and claim the issuance of letters to themselves
or on the other hand, suffer the consequences of (Sec. 6, Rule 79).
waste, improvidence or mismanagement, have the
higher interest and most influential motive to Q: Is the order of Appointment of Regular
administer the estate correctly (Gonzales v. Administrator final?
Aguinaldo, G.R. No. 74769, Sept. 28, 1990).
A: No. The order of appointment of a regular
Q: When may co-administrators be appointed? administrator is appealable. Where no notice is
required by Sec. 3, Rule 79 of the Rules of Court has
A: been given to persons believed to have an interest
1. To have the benefit of their judgment and in the estate of the deceased person; the
perhaps at all times to have different proceeding for the settelement of the estate is void
interests represented; and should be annulled. The requirement as to
2. Where justice and equity demand that notice is essential to the validity of the proceeding
opposing parties or factions be in order that no person may be deprived of his right
represented in the management of the to property without due process of law. (Herrera,
estate of the deceased; Vol. III-A, p. 94, 2005 ed.)
3. Where the estate is large or, from any
cause, an intricate and perplexing one to
settle; 4. POWERS AND DUTIES OF EXECUTORS AND
4. To have all interested persons satisfied ADMINISTRATORS; RESTRICTIONS ON THE
and the representatives to work in POWERS
harmony for the best interest of the
estate; or Q: What are the rights of the executor or
5. When a person entitled to the
administration of an estate desires to
have another competent person A:
associated with him in the office. (Gabriel 1. He shall at all times have access to, and
v. CA, G.R. No. 101512, Aug. 7, 1992) may examine and take copies of books
and papers relating to the partnership;
3. OPPOSITION TO ISSUANCE OF LETTERS 2. He can make invoices of the property
TESTAMENTARY; SIMULTANEOUS FILING OF belonging to the partnership, and the
PETITION FOR ADMINISTRATION surviving partner or partners on request;
and
Q: Who may oppose the issuance of letters 3. The books, papers, and property in the
testamentary or administration?
exhibited to such executor or
A: Any person interested in the will may file a administrator. (Sec. 1, Rule 84)
written opposition.
Note: To exercise these rights, the executor or
Note: He may attach thereto a petition for letters of administrator must file his application with the
administration and pray that letters be issued to probate court which must grant the same.
himself, or to any competent person named in the
opposition (Sec. 1, Rule 79). Q: What should be done by the executor or
administrator to freely exercise his rights and
Q: What are the grounds for opposing a petition duties?
for administration?
A: He shall submit a written application to the court
A: Any interested person may by filing a written having jurisdiction of the estate. (Sec. 1, Rule 84)
opposition, contest the petition on the ground of
the:
Q: What are the general powers of an 6. He cannot profit by the increase or

administrator or an executor? decrease in the value of the property
under administration;
A: 7. He cannot exercise the right of legal
1. To have access to, and examine and take redemption over a portion of the
copies of books and papers relating to the property owned in common sold by one
partnership in case of a deceased partner of the other co-owners. (Herrera, Vol. III-
2. To examine and make invoices of the A, pp. 116-117, 2005 ed.)
property belonging to the partnership in
case of a deceased partner 5. APPOINTMENT OF SPECIAL ADMINISTRATOR
3. To maintain in tenantable repairs, houses
and other structures and fences and to REGULAR SPECIAL
deliver the same in such repair to the ADMINISTRATOR ADMINISTRATOR
heirs or devisees when directed so to do Order of Appointment Order of Appointment is
by the court may be the subject of an interlocutory and hence
4. To make improvements on the properties appeal not appealable
under administration with the necessary One of the obligations is Cannot pay the debts of
court approval except for necessary to pay the debts of the the estate
repairs estate
5. To possess and manage the estate when Appointed when the Appointed when there is
necessary: deceased died intestate delay in granting letters
i) For the payment of debts; and or did not appoint an testamentary or
ii) For the payment of expenses of executor in the will or the administration
administration will was disallowed
Q: Is the right of an executor/administrator to the Q: When are the grounds for the appointment of a
possession and management of property of the special administrator?
deceased absolute?
A:
A: No, it can only be exercised so long as it is 1. When there is delay in granting letters
necessary for the payment of debts and expenses of testamentary or of administration by any
administration (Ruiz v. CA, G.R. No.118671, Jan. 29, cause including an appeal from the
1996). allowance or disallowance of a will (Sec. 1,
Rule 80); or
Q: What are the restrictions on the powers of 2. When the executor or administrator is a
administrator or executor? claimant against the estate he represents
(Sec. 6, Rule 86).
A:
1. He cannot acquire by purchase, even at Note: Only one special administrator at a time may be
public or judicial action, either in person appointed, since the appointment is merely
or mediation of another, the property temporary.
under administration;
2. He cannot borrow money without Q: Why is there a need for appointing a special
authority from the court; administrator?
3. He cannot speculate with funds under
A: The principal object is to preserve the estate
administration;
until it can pass into the hands of persons fully
4. He cannot lease the property under
authorized to administer it for the benefit of the
administration for more than 1 year;
creditors and heirs (De Guzman v. Guadiz, G.R. No.
Note: The administrator has the power to
L-48585, Mar. 31, 1980).
enter into lease contracts involving the
properties of the estate even without prior Q: What are the qualifications of a special
judicial authority and approval. (Mananquil administrator?
v. Villegas, A.M. No. 2430, Aug. 30, 1990)
A: These are not spelled out in the Rules of Court.
5. He cannot continue the business of the Thus, the appointment should be within the sound
deceased unless authorized by the court; discretion of the court. The fundamental and legal
and principles governing the choice of a regular
administrator should also be taken into account in

SPECIAL PROCEDINGS
the appointment of a special administrator. administrator is appointed with those

(Herrera, Vol. III-A, p. 99, 2005 ed.) powers.
2. If a special administrator has been
Q: Does the order of preference in the appointed, and thereafter a proceeding to
appointment of regular administrators apply to contest a will before it is admitted to
the appointment of special administrators? probate has been instituted, the court
shall enter an order granting to the
A: No, but such order of preference may be special administrator the additional
followed by the judge in the exercise of sound powers, duties and obligations of an
discretion (Matias v. Gonzales, G.R. No. L- 13391, executor or administrator and requiring
May 25, 1960). such additional bond as the court deems
proper.
Q: Is the order appointing a special administrator
appealable? 6. GROUNDS FOR REMOVAL OF ADMINISTRATOR
A: No, it is an interlocutory order. (Esler v. Tad-y, Q: What are the grounds for the removal of an
G.R. No. L-20902, Oct. 9, 1923) executor or administrator?
Q: What are the powers and duties of a special A:

administrator? 1. Neglect to render an account and settle
the estate according to law;
A: 2. Neglect to perform an order or judgment
1. Possess and take charge of the goods, of the court, or a duty expressly provided
chattels, rights, credits and estate of the by the Rules;
deceased; 3. Absconds;
2. Preserve the same; 4. Becomes insane; or
3. Commence and maintain suit for the 5. Becomes incapable or unsuitable to
estate; discharge the trust (Sec. 2, Rule 82).
4. Sell only:
a. Perishable property; and Note: These grounds are not exclusive. False
b. Other property ordered sold by the misrepresentation by an administrator in securing his
court; appointment is a ground for his removal (Cobarrubias
5. Pay debts only as may be ordered by the v. Dizon, G.R. No. L-225, Feb. 26, 1946).
court. (Sec. 2, Rule 80)
Q: What are the other grounds for removal of an
Q: When do the powers of special administrator executor or administrator?
cease?
A:
A: After the questions causing the delay are 1. Death;
resolved and letters testamentary or administration 2. Resignation;
are granted to executor or regular administrator. 3. An administrator who disbursed funds of
(Sec. 1) the estate without judicial approval.
(Cotia vs. Jimenez, 104 Phil. 960);
Q: When can 2 special administrators be 4. False representation by an administrator
appointed? in securing his appointment (Cabarubbias
vs. Dizon, 76 Phil. 209);
A: 5. An administrator who holds an interest
1. If a special administrator is appointed adverse to that of the estate or by his
pending determination of a contest of a conduct showing his unfitness to
will instituted before it is admitted to discharge the trust (Garcia vs. Vasquez, 32
probate, or pending an appeal from an SCRA 490);
order appointing, suspending or removing 6. An administrator who has the physical
an executor or administrator, the special inability and consequent unsuitability to
administrator has the same powers, manage the estate (De Borja vs. Tan, 93
duties and obligations as an executor or Phil. 167).
administrator, and the letters of
administration issued to the special
administrator must recite that the special

Q: Are the grounds for removal of executor or Q: What is the duty of the court after granting
administrator the same for special administrator? letters testamentary or of administration?
A: No. The grounds for the removal of regular A: The court shall issue a notice requiring all
administrator do not apply strictly to the special persons having money claims to file them in the
administrator as he may be removed by the court office of the clerk of court. (Sec. 1, Rule 86)
on other grounds upon its discretion.
1. TIME WHITIN WHICH CLAIMS SHALL BE FILED;
Q: What is the rule on proceedings upon death, EXCEPTIONS
resignation or removal of an executor or
administrator? Q: What is the time within which claims shall be
filed?
A: When an executor or administrator dies, resigns,
or is removed the remaning executor or A: It should not be less than six (6) months nor
administrator may administer the trust alone, more than twelve (12) months from the day of the
unless the court gransts letters to someone act with first publication of the notice thereof. Such period
him. If there is no remaining executor or when fixed by the probate court becomes
administrator, administration may be granted to mandatory. However, at any time before an order
any suitable person. of distribution is entered, on application of a
creditor who has failed to file his claim within the
Q: Does the discovery of a will automatically time previously limited, the court may, for cause
terminate the letters of administration? shown and on such terms as are equitable, allow
such claim to be filed within a time not exceeding
A: No, until the will has been proved and allowed one (1) month. (Sec. 2, Rule 86)
pursuant to Section 1, Rule 82. (De Parreno v.
Aranzanso, G.R. No. L- 27657, Aug. 30, 1982) The period prescribed in the notice to creditors is
not exclusive; that money claims against the estate
Q: What are the powers of a new executor or may be allowed at any time before an order of
administrator after the first one resigns or is distribution is entered, at the discretion of the court
removed? for the cause and upon such terms as are equitable.
(Quisumbing vs Guison, 76 Phil 730)
A:
1. To collect and settle the estate not Note: The range of period specified in Sec.2 of Rule 86
administered; is intended to give the court the discretion to fix the
2. To prosecute or defend actions period for the filing of the claims. The probate court is
commenced by or against the former permitted by the rule to set the period as long as it is
executor or administrator; and within the limitation provided.
To recover execution on judgments in the name of
former executor or administrator. (Sec. 4, Rule 82) 2. STATUTE OF NON-CLAIMS
F. CLAIMS AGAINST THE ESTATE Q: What is the statute of non-claims?
Q: What is a claim? A: It is a period fixed by the courts for the filing of

claims against the estate for examination and
A: Claim refers to any debt or pecuniary demand allowance. (Herrera, Vol. III-A, p. 132, 2005 ed.)
Q: When should claims be filed?

Q: What is absolute claim?
A:
A: It is one which, if contested between living GR: Within the time fixed in the notice which
persons, would be the proper subject of immediate shall not be more than 12 months nor less than
legal action and would supply a basis of judgment 6 months after the date of the first publication.
for a sum certain. Such period once fixed by the court is
mandatory. Otherwise, the claims are barred
Q: What is contingent claim? forever.
A: It is a conditional claim, which is subject to the Note: Where an executor or administrator

happening of a future uncertain event. (Buan v. commences an action, or prosecutes an action
Laya, G.R. No. L-7840, Dec. 24, 1957) already commenced by the deceased in his
lifetime, the debtor may set forth by answer the

SPECIAL PROCEDINGS
claims he has against the decedent, and mutual estate may be commenced against the executor or
claims may be set off against each other in such administrator under Rule 87.
action. (Sec. 5, Rule 86)
Q: What if the effect of claims not filed?
XPN: Belated claims.
A: As expressly provided by the rule, all claims not
Q: What is the rule on Belated Claims? presented within the time herein provided are
barred.
A: Belated claims may be filed even beyond the
period fixed by the court: Q: The trial court admitted to probate the
holographic will of Alice and thereafter issued an
1. On application of a creditor who has order for all the creditors to file their respective
failed to file his claim within the time claims against the estate. Alan filed a contingent
previously limited, at any time before an claim for agent's commission due him in the event
order of distribution is entered, the court of the sale of certain parcels of land belonging to
may, for just causes, allow such claim to the estate and reimbursement for expenses
be filed not exceeding 1 month from the incurred. The executrix of the estate moved for
order allowing belated claims; or (Sec. 2 , the dismissal of said money claim against the
Rule 86) estate on the grounds that Alan failed to attach a
2. Where the estate filed a claim against the certification against non-forum shopping. The trial
creditor or claimant who failed to present court dismissed the case. Is the trial court correct?
his claim against the estate within the
period fixed by the probate court for the A: No. Under Sections 1 and 5, Rule 86 of the Rules
settlement of such claims, the creditor of Court, after granting letters of testamentary or of
will be allowed to set up the same as a administration, all persons having money claims
counterclaim to the action filed by the against the decedent are mandated to file or notify
estate against him. the court and the estate administrator of their
respective money claims; otherwise, they would be
Note: Statute of non-claims supersedes the Statute of barred, subject to certain exceptions. A money
Limitations insofar as the debts of deceased persons claim is only an incidental matter in the main action
are concerned because if a creditor fails to file his for the settlement of the decedent's estate; more
claim within the time fixed by the court in the notice,
so if the claim is contingent since the claimant
then the claim is barred forever. However, both
cannot even institute a separate action for a mere
statute of non-claims and statute of limitations must
contingent claim. He contingent money
concur in order for a creditor to collect.
claim, not being an initiatory pleading, does not
Q: What claims against the estate of the decedent require a certification against non-forum shopping.
must be presented in the probate court in the (Sheker v. Estate of Alice O. Sheker, G.R. No.157912,
testate or intestate proceedings? Dec. 13, 2007)
A: Only claims which survive such as: Q: Should taxes due and assessed after the death
1. All claims for money against the of the decedent be presented in the form of a
decedent, arising from contract, express claim?
or implied, whether the same be due, not
A: No. The court in the exercise of its administrative
due, or contingent;
control over the executor or administrator may
2. All claims for funeral expenses;
direct him to pay such taxes. Moreover, heirs even
3. Expenses for the last sickness of the
after distribution are liable for such taxes. (Vera v.
decedent; or
Fernandez, G.R. No. L-31364, Mar. 30, 1979)
4. Judgment for money against the
decedent. (Sec. 5, Rule 86)
3. CLAIM OF EXECUTOR OR ADMINISTRATOR
AGAINST THE ESTATE
Note: Action on contractual claims such as favorable
judgment obtained by the plaintiff in an action for
Q: What should be the action of the executor or
recovery of money arising from contract, express or
implied, and the defendant dies before entry of final administrator if he has a claim against the estate?
judgment may be filed against the estate of the
decedent. (Sec. 20, Rule 3) A: He shall give notice to the court in writing and
the court shall thereafter appoint a special
Action which survives like an action to recover real administrator (Sec. 8, Rule 86).
or personal property or an interest therein from the
Q: What is the procedure in filing claims?
A:
Q: Jericho loaned P5 Million from Carina. Said loan 1. Waive the mortgage and claim the entire debt
was secured by a real estate mortgage over a from the estate of the mortgagor as an
parcel of land owned by Jericho. Thereafter, ordinary claim;
Jericho died without satisfying the loan secured by 2. Foreclose the mortgage judicially and prove
the said mortgage. What are the remedies any deficiency as an ordinary claim;
available to Carina to enforce her mortgage credit? 3. Rely on the mortgage exclusively, foreclosing
the same at any time before it is barred by
A: prescription without the right to claim for any
deficiency (Sec. 7, Rule 86).
Note: The above remedies are alternative.

SPECIAL PROCEDINGS
4. PAYMENT OF DEBTS 5. The decedent was, in his lifetime, under

contract, binding in law, to deed real
Q: Is execution the proper remedy to satisfy an property to beneficiary (Sec. 8, Rule 89);
approved claim? 6. The decedent during his lifetime held real
property in trust for another person (Sec.
A: No, because: 9, Rule 89).
1. Payment approving a claim does not create a Q: How shall the proceeds from sale of personal
lien upon property of the estate property be used?
2. Special procedure is for the court to order the
sale to satisfy the claim A:
1. To pay the debts and expenses of
Note: A writ of execution is not the proper administration;
procedure to satisfy debts. The court must order 2. To pay legacies; and
the sale or mortgage of the properties of 3. To cover expenses for the preservation of
decedent, the proceeds of which will satisfy the the estate. (Sec. 1, Rule 89)
debts and expenses.
Q: How should contingent claims be paid?
Q: How should the debts of the estate be paid?
A: If the court is satisfied that a contingent claim
A:
duly filed is valid, it may order the executor or
GR: The payment of the debts of the estate
administrator to retain in his hands sufficient estate
must be taken from the following order:
to pay such contingent claim when the same
becomes absolute, or if the estate is insolvent,
1. Portion or property designated in the will
sufficient estate to pay a portion equal to the
The debts of the testator, expenses of
dividend of the other creditors. (Sec. 4, Rule 88)
administration, or family expenses, shall
be paid according to the provisions of the
Q: What must be satisfied before a contingent
will. If such are insufficient, the properties
claim may be allowed by the court?
not disposed of by will, if any, shall be
appropriated for that purpose. A:
2. Personal property; 1. Duly filed within the 2 year period
3. Real property. (Sec. 2, Rule 88) allowed for the creditors to present
claims;
Note: If there is still a deficiency, it shall be
2. The claim is valid; and
met by contributions of devisees, legatees,
3. The claim became absolute. (Sec. 5, Rule
or heirs who have entered into possession
88)
of portions of the estate before the debts
and expenses have been settled and paid
(Secs. 2, 3, and 6, Rule 88). Q: What is the consequence if the contingent claim
is not presented within the 2 year period after it
XPNS: On application by executor or becomes absolute?
administrator, with written notice to persons
interested, and after hearing, real properties A: The assets retained in the hands of the executor
can be charged first even though the personal or administrator, not exhausted in the payment of
properties are not exhausted when: claims, shall be distributed by the order of the court
to the persons entitled to the same (Sec. 4, Rule
1. The personal property is not sufficient to 88). However, the assets so distributed may still be
pay the debts, expenses of administration applied to the payment of the claim when
and legacies (Sec. 3, Rule 88); established, and the creditor may maintain an
2. The sale of such personal property would action against the distributees to recover the debt,
be detrimental to the participants of the and such distributees and their estates shall be
estate (Sec. 3, Rule 88); liable for the debt in proportion to the estate they
3. Sale of personal property may injure the have respectively received from the property of the
business or other interests of those deceased.
interested of the estate (Sec. 2, Rule 89);
4. The testator has not made sufficient Note: If heirs have taken possession of portions of the
estate before the debts have been settled, they shall
provision for payment of such debts,
become liable to contribute for the payment of debts
expenses or legacies (Sec. 2, Rule 89);
and expenses, and the court may, after hearing, settle

the amount of their several liabilities, and order how A: Those claims which can proceed independently
much and in what manner each person shall of the settlement proceeding such as:
contribute (Sec. 6, Rule 88).
1. Actions to recover real or personal
Q: What is the order of payment if estate is property, or an interest therein, from the
insolvent or assets are insufficient? estate;
2. Enforcement of a lien;
A: The executor or administrator shall pay the debts 3. Actions to recover damages for an injury
according to the concurrence and preference of to person or property, real or personal.
credits provided by Articles 1059 and 2239-2251 of (Sec. 1, Rule 87)
the NCC (Sec. 7, Rule 88).
Q: What action may be brought by the executor or
Q: How should the estate in the Philippines of an administrator?
insolvent non-resident be disposed of?
A: Recovery or protection of the property or rights
A: It shall be disposed of that his creditors in and of the deceased, action for causes which survive.
outside the Philippines may receive an equal share, (Sec. 2, Rule 87)
in proportion to their respective credits (Sec. 9, Rule
88). Note: When an executor or administrator is appointed
and assumes the trust, no action to recover the title or
Q: When and how should claims proved outside possession of lands or for damages done shall be
maintained against him by an heir or devisee until
be paid? there is an order of the court assigning the lands to
such heir or devisee or until the time allowed for
A: Claims proven outside the Philippines where the paying debts has expired. (Sec. 3, Rule 87)
executor had knowledge and opportunity to contest
its allowance may be added to the list of claims Q: What is the concept of a superseades bond?
proved against the decedent in the Philippines and
the estate will be distributed equally among those A: It partakes the form of a security posted by the
creditors (Sec. 10, Rule 88). appealing party (who has lost the case in the lower
court) to compensate the opposing party for the
Note: The benefits in the above provision shall not be legal expenses in case it wins also in the higher
extended to the creditors in another country if the (appellate) court.
property of such deceased person there found is not
equally apportioned to the creditors residing in the Q: What are the requisites in order that
Philippines and the other creditors, according to their executor/administrator may commence and
respective claims. prosecute an action for the recovery of property, if
the decedent fraudulently conveys property to
Q: When should the court authorize sale, defraud his creditors?
mortgage or other encumbrance of estate to pay
debts and legacies in other countries? A:
1. Application of the creditors;
A: When it appears from records and proceedings 2. Payment of cost and expenses; and
of a probate court of another country that the 3. Give security therefore to the executor or
estate of the deceased in foreign country is not administrator. (Sec. 9, Rule 87)
sufficient to pay debts and expenses, the court here
may authorize the executor or administrator to sell, 2. REQUISITES BEFORE CREDITOR MAY BRING AN
mortgage or encumber the property in the same ACTION FOR RECOVERY OF FRAUDULENTLY
manner as for the payment of debts and legacies in CONVEYED BY THE DECEASED
the Philippines (Sec. 5, Rule 89).
Q: What are the requisites before a creditor may
G. ACTIONS BY AND AGAINST EXECUTORS AND bring an action for recovery of property
ADMINISTRATORS fraudulently conveyed by the deceased?
1. ACTIONS THAT MAY BE BROUGHT AGAINST A:

EXECUTORS AND ADMINISTRATORS 1. There is a deficiency of assets in the
hands of an executor or administrator for
Q: What actions may be brought against the the payment of debts and expenses of
executor or administrator? administration;

SPECIAL PROCEDINGS
2. In his lifetime, the deceased had made or

attempted to make a fraudulent Note: The creditor shall have a lien on the judgment
conveyance of his property or had so recovered for costs and expenses. The last 3 requisites
conveyed such property that by law, the are unnecessary where the grantee is the executor or
conveyance would be void as against his administrator himself, in which event, the action
creditors; should be in the name of all the creditors. (Sec. 10;
3. The subject of the attempted conveyance Herrera, Vol. III-A, p. 175, 2005 ed.)
would be liable to attachment in his
H. DISTRIBUTION AND PARTITION
lifetime;
4. The executor or administrator has shown
1. LIQUIDATION
no desire to file the action or failed to
institute the same within a reasonable
Q: What is liquidation?
time;
5. Leave is granted by the court to the
A: Liquidation is the determination of all assets of
creditor to file the action;
the estate and payment of all debts and expenses.
6. A bond is filed by the creditor; and
7. The action by the creditor is in the name
of the executor or administrator (Sec. 10).
Q: Discuss the process for the distribution of the residue of the estate.
A:

Note: Even if the testator stated in his will that he owes a certain person and ordered that the same be paid, if the
estate is insolvent, the creditor shall not enjoy priority over other claimants. The provision in the will should only
establish the claim of the creditor against the estate. He must still file his claim according to Section 9, Rule 86 and must
comply with the statute of non-claims.
Q: When is the order for distribution of residue It is merely a proposal for the distribution of the
made? hereditary estate which the court may accept or
reject. (Herrera, Remedial Law III-A, p 213)
A:
GR: Order of distribution shall be made after Q: May an heir of the deceased sell his undivided
payments of all debts, funeral expenses, share during the pendency of the estate
expenses for administration, allowance of proceedings without the prior approval of the
widow and inheritance tax. (Sec. 1, Rule 90) probate court?
XPN: If the distributees or any of them gives a A: Yes. An heir has the right to sell his undivided or
bond conditioned for the payment of said ideal share of the estate, he being the co-owner
obligation, the order of distribution may be with other heirs of the estate. Court approval is
made even before the payment of all debts, etc. necessary only if specific property of the estate is
(par. 2, Sec. 1, Rule 90) sold. (Heirs of Pedro Escanlar v. CA, G.R. No.
119777, Oct. 23, 1997)
Note: The probate court loses jurisdiction over the
settlement proceedings only upon payment of all Q: Does the finality of the approval of the project
debts and expenses of the obligor and delivery of of partition by itself alone terminate the probate
the entire estate to all the heirs. (Guilas v. Judge of proceeding?
CFI of Pampanga, G.R. No. L- 26695, Jan. 31, 1972)
A: No. As long as the order of the distribution of the
Q: When should declaration of heirship be made? estate has not been complied with, the probate
proceedings cannot be deemed closed and
A: It is only after, and not before, the payment of all terminated. (Estate of Ruiz v. CA, G.R. No. 118671,
debts, funeral expenses, charges of administration, Jan. 29, 1996)
allowances to the widow, and inheritance tax shall
have been effected that the court should make the 3. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT
declaration of heirs or of such person as are NOT GIVEN HIS SHARE
entitled by law to the residue.
Q: What is the remedy of an heir who is entitled to
It should however be made clear that what the the residue but was not given his share?
court is enjoined from doing so is the distribution of
the residue of the estate before its obligations are A:
first paid, but the court is not enjoined from making 1. MOTION TO SET ASIDE THE
the declaration of heirs prior to the satisfaction of DISTRIBUTION- If an heir appears after
these obligations. the court approved the project of
partition, the heir must file a Motion to
Q: What should the executor or administrator do if set aside the distribution with the court
all the claims are paid or settled? so that the court will not proceed with
the distribution of the residue. The
A: The executor or administrator shall prepare the probate court shall determine whether
project of partition reflecting the residue of the such heir has a right to participate in the
estate and how it is to be distributed. However, this distribution of the residue. If it is proven
is not mandatory. (Herrera, Vol. III-A, p. 213, 2005 that the heir has a right, the court may
ed.) order the revision of the project of
partition for its adjustment.
2. PROJECT OF PARTITION
2. MOTION FOR THE RE- OPENING OF THE
Q: What is project of partition?
SETTLEMENT PROCEEDINGS-If the
A: It is a document prepared by the executor or distribution has already been made, a
administrator setting forth the manner in which the motion for closure has already been
estate of the deceased is to be distributed among granted, the heir must file a Motion for
the heirs. (Solivio v. CA, G.R. No. 83308, Feb. 12, the re-opening of the settlement
1990) proceedings within the 30 day

SPECIAL PROCEDINGS
reglementary period, provided the order CFI of Mindoro, 85 Phil. 228, a writ of
of closure has not yet become final and execution is not the proper procedure
executory. allowed by the Rules of Court for the payment
of debts and expenses of administration. The
3. ACCION REINVIDICATORIA- If the order of proper procedure is for the court to order the
closure has already become final and sale of personal estate or the sale or
executory, (Vda. de Lopez v. Lopez, G.R. mortgage of real property of the deceased
No. L-28602, Sept. 29, 1970) and all debts and expenses of the
administration should be paid out of the
Q: When is title to property vested to the heirs? proceeds of such sale or mortgage. The order
for the sale or mortgage should be issued
A: It is vested from finality of order of distribution. upon motion of the administrator and with
the written notice to all the heirs, legatees
Q: Is the order that determines distributive share and devisees residing in the Philippines. And
appealable? when the sale or mortgage is to be made, the
regulations contained in Rule 89, Sec. 7
A: Yes. Otherwise, it becomes final. should be complied with.
4. INSTANCES WHEN PROBATE COURT MAY ISSUE XPNS:
WRIT OF EXECUTION 1. To satisfy the distributive shares of the
devisees, legatees and heirs in possession
Q: What are the instances when the probate court
may issue writ of execution? 2. To enforce payment of the expenses of
partition; and
A:
3. To satisfy the costs when a person is cited
GR: A probate court cannot issue a writ of
for examination in probate proceedings.
execution. In the case of Aldamiz vs. Judge of
I. TRUSTEES
1. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR
EXECUTOR/ ADMINISTRATOR TRUSTEE

Accounts are NOT under oath and except for initial and Accounts must be UNDER OATH and filed ANNUALLY
final submission of accounts, they shall be filed only at
such times as may be required by the court
Court that has jurisdiction may be MTC or RTC Court which has jurisdiction is the RTC if appointed to
carry into effect provisions of a will; if trustee dies, resigns
or is removed in a contractual trust, RTC has jurisdiction in
the appointment of new trustee
May sell, encumber or mortgage property if it is necessary May sell or encumber property of the estate held in trust
for the purpose of paying debts, expenses of if necessary or expedient or upon order of the court
administration or legacies or for the preservation of
property or if sale will be beneficial to heirs, legatees or
devisees
(Upon application to the court with written notice to the
heirs)
Order of sale has NO TIME LIMIT Order of sale has NO TIME LIMIT
Approved by the court to settle estate of the decedent Appointed to carry into effect the provisions of a will or
written instrument (contractual trust)
NOT EXEMPTED from filing a bond even if such exemption May be EXEMPTED from filing a bond if provided in the
is provided in the will (ratio: bond is only conditioned upon will or if beneficiaries requested such exemption
payment of debts)
Services of executors or administrator is terminated Trusteeship is terminated upon TURNING OVER THE
UPON PAYMENT OF DEBTS of the estate and PROPERTY to beneficiary after expiration of the trust
DISTRIBUTION of property to the heirs (period may be provided for in the will or trust contract)
MUST PAY the debts of the estate NO OBLIGATION TO PAY the debts of the beneficiaries or
trustor

Q: What is a trust? 3. REQUISITES FOR THE REMOVAL AND

RESIGNATION OF A TRUSTEE
A: A legal relationship between one person having
an equitable ownership in property and another Q: What are the requisites for the removal or
person owning the legal title to such property. resignation of a trustee?
Q: Who is a trustee? A:
1. Petition filed by parties beneficially
A: A trustee is one who is appointed to carry out interested;
the provision of the will or any written instrument 2. Notice to trustee; and
executed by the trustor. 3. Hearing (Sec. 8, Rule 98).
2. CONDITIONS OF THE BOND 4. GROUNDS FOR REMOVAL AND RESIGNATION OF

A TRUSTEE
Q: What are the conditions of the bond?
Q: What are the grounds for removal or
A: resignation of a trustee?
1. That the trustee will make and return to
the court, at such time as it may order, a A:
true inventory of all the estate belonging 1. Removal appears essential in the interest
to him as trustee, which at the time of the of petitioners;
making of such inventory shall have come 2. Insanity;
to his possession or knowledge; 3. Incapability of discharging the trust; or
Note: When the trustee is appointed as a 4. Unsuitability (Sec. 8, Rule 98).
successor to a prior trustee, the court may
dispense with the making and return of an Note: A trustee may resign his trust if it appears to the
inventory if one has already been filed. court proper to allow such resignation (Sec. 8, Rule 98).
2. That he will manage and dispose of all 5. EXTENT OF AUTHORITY OF TRUSTEE

such estate, and faithfully discharge his
trust in relation thereto, according to law Q: What is the extent of authority of a trustee?
3. and the will of the testator or the
provisions of the instrument or order A: Rule 98, applies only to express trust, one which
under which he is appointed; is created by a will or a written instrument.
4. That he will render upon oath at least
once a year until his trust is fulfilled a true Q: When is there a testamentary trust?
account of the property in his hands and
of the management and disposition A: If a testator has omitted in will to appoint a
thereof, and such other accounts as the trustee in the Philippines, and if such appointment
court may order; and is necessary to carry into effect the provisions of
5. That at the expiration of his trust he will the will. After notice to all persons interested, the
settle his accounts in court and pay over proper RTC may appoint a trustee who shall have
and deliver all the estate remaining in his the same rights, powers, and duties, and in whom
hands, or due from him on such the estate shall vest, as if he had been appointed by
settlement, to the persons entitled the testator.
thereto (Sec. 6, Rule 98).
Q: When is there a contractual trust?
Q: Is the trustee required to file a bond?
A: When a trustee under a written instrument
A: declines, resigns, dies, or is removed before the
GR: Yes. Neglect of trustees to file a bond will objects of the trust are accomplished, and no
be interpreted by the court as resignation or adequate provision is made in such instrument for
decline to accept the trust. supplying the vacancy after due notice to all
persons interested, the proper RTC may appoint a
XPN: If requested by the testator or by all
new trustee to act alone or jointly with the others,
persons beneficially interested in the trust, the
as the case may be.
trustee may be exempted from filing a bond.
But the court may cancel such exemption
anytime. (Sec. 5, Rule 98)

SPECIAL PROCEDINGS
Q: Can the possession of the trustee of the

property ripen into ownership? Q: Can the court convert escheat proceedings into
settlement of the estate?
A:
GR: An action to compel a trustee to convey A: No, once the court acquires jurisdiction to hear
property registered in his name in trust for the the petition for escheat by virtue of the publication
benefit of the cestui qui trust does not of the petition for escheat, this jurisdiction cannot
prescribe. Th be converted into one for the distribution of the
adverse and therefore cannot ripen into title by properties of the decedent.
prescription.
Note: For the distribution of the estate to be
XPN: Prescription may arise where there is instituted, the proper petitions must be presented and
adverse possession of the property. To the proceedings should comply with the requirements
of the Rules of Court. (Municipality of Magallon v.
constitute adverse possession, the following
Bezore, G.R. No. L-14157, Oct. 26, 1960)
must be present:
3. REMEDY OF RESPONDENT AGAINST PETITION;
1. That the trustee has performed
PERIOD FOR FILING A CLAIM
unequivocal acts amounting to an ouster
of the cestui qui trust;
Q: What is the remedy of the respondent against
2. That such positive acts of repudiation had
the petition for escheat?
been made known to the cestui qui trust;
and A: When the petition does not state the facts which
3. That the evidence thereon should be clear entitle the petitioner to the remedy prayed for, or
and conclusive. (Ceniza vs. CA, 181 SCRA even admitting them hypothetically, the
552) respondent may file a MOTION TO DISMISS, in such
case the Motion to dismiss plays the role of a
J. ESCHEAT demurrer to evidence (Herrera, Remedial Law III-A,
p 227-228)
Q: What is escheat?
K. GUARDIANSHIP
A: It is a French or Norman term meaning chance or
accident. It is the reversion of property to the State Q: What is guardianship?
in consequence of want of any individual
competent to inherit. A: It is a trust relation in which one person acts for
another whom the law regards as incapable of
1. WHEN TO FILE managing his own affairs.
Q: What are the three instances of escheat? Note: Guardianship of minors is now governed by the
Rule on Guardianship of Minors (AM No. 03-02-05-SC)
A: which took effect on May 1, 2003. While guardianship
1. When a person dies intestate leaving no of incompetents who are not minors is still governed
heir but leaving property in the by the provisions of the Rules of Court on
Philippines (Sec. 1, Rule 91); Guardianship. (Rule 92- 97)
2. Reversion proceedings where sale of
property is made in violation of the Q: What is ancillary guardianship?
Constitutional provision; and
3. Dormant accounts for 10 years A: It refers to the guardianship in a state other than
(Unclaimed Balance Act of Banking Laws). that in which guardianship is originally granted.
2. REQUISITES FOR FILING OF PETITION 1. GENERAL POWERS AND DUTIES OF GUARDIANS
Q: What are the requisites for filing a petition? Q: To what extent does guardianship extend?
A: A: Conflicts regarding ownership or title to the

1. A person died intestate; property in the hands of the guardian in his capacity
2. He left no heirs or persons by law entitled as such should be litigated in a separate
to the same; and proceeding, the court in guardianship proceeding is
3. The deceased left properties in the
Philippines. (Sec. 1, Rule 91) and proper administration of his properties (Villoria

v. Administrator of Veteran Affairs, L-9620, June to the possession or knowledge of any

1957) other person for him;
2. To faithfully execute the duties of his
Q: What are the general powers and duties of trust, manage and dispose of the estate
guardians? according to the rules for the best
interests of the ward, and to provide for
A: the proper care, custody, and education
1. To have the care and custody of the of the ward;
person of the ward, and/or the 3. To render a true and just account of all
management of his estate; the estate of the ward in his hands, and of
2. Pay the debts of the ward; all proceeds or interest derived there
3. To settle accounts, collect debts, and from, and of the management and
appear in actions for the ward; disposition of the same, at the time
4. Manage the estate of the ward frugally, designated by the rules and such other
and apply the proceeds to the times as the court directs; and at the
maintenance of the ward; expiration of his trust, settle his accounts
5. Render verified inventory within 3 with the court and deliver and pay over all
months after his appointment and the estate, effects, and moneys remaining
annually thereafter, and upon application in his hands, or due from him on such
of interested persons; settlement, to the person lawfully entitled
6. Render to court for its approval an thereto; and
accounting of the property for 1 year 4. To perform all orders required by the
from his appointment and as often court (Sec. 1, Rule 94; Sec.14, A.M. No.
thereafter as may be required, and upon 03-02-05-SC).
application of interested persons
7. Consent to a partition of real or personal Q: What is the purpose of the bond?
property owned by ward jointly or in
common with others. (Secs. 1-8, Rule 96; A: It is for the protection of the property of the
Sec. 17, A.M. No. 03-02-05-SC) minor or incompetent to the end that he may be
assured of an honest administration of his funds
(Herrera, Vol. III-A, p. 282, 2005 ed.)
property?
Note: The bond of the guardian is a continuing one
A: against the obligors and their estates until all of its
1. Personal estate and income of real estate conditions are fulfilled. The mere fact that defendant
2. Real estate was removed as guardian did not relieve her or her
bondsmen from liability during the time she was duly
Q: What are the requisites to authorize the acting as such guardian. (Guerrero v. Teran, G.R. No. L-
guardian to join in the partition proceedings after 4898, Mar. 19, 1909)
hearing?
Q: Does the requirement of posting a bond extend
A: to parents who are the legal guardians of their
1. Hearing minor children? Explain.
2. Notice to relatives of the ward; and
A:
3. Careful investigation as to the necessity
GR: No, if the market value or annual income of
and propriety of the proposed action
the child is P 50,000 or below.
(Section 5)
XPN: If the market value of the property or the
2. CONDITIONS OF THE BOND OF THE GUARDIAN
annual income of the child exceeds P50,000,
the parent concerned shall furnish a bond in
Q: What are the conditions of the bond of the
such amount as the court may determine, but
guardian?
in no case less than 10% of the value of such
A: property or annual income, to guarantee the
1. To make and return to the court, within 3 performance of the obligations prescribed for
months, a true and complete inventory of general guardians (Sec. 16, A.M. No. 03-02-05-
all the estate of his ward which shall SC).
come to his possession or knowledge or

SPECIAL PROCEDINGS
3. RULE ON GUARDIANSHIP OVER MINOR A:

1. Moral character;
Q: Who may petition for appointment of guardian 2. Physical, mental, and psychological
for resident? condition;
3. Financial status;
A: 4. Relationship of trust with the minor;
1. Any relative; 5. Availability to exercise the powers and
2. Other person on behalf of the minor; duties of a guardian for the full period of
3. Minor himself is 14 years of age; or the guardianship;
4. Secretary of Social Welfare and 6. Lack of conflict of interest with the minor;
Development AND by the Secretary of Health in and
case of insane minor who needs to be hospitalized. 7. Ability to manage the property of the
(Section 2, AM-03-02-05-SC) minor (Sec. 5, A.M. No. 03-02-05-SC).
Q: Is court appointment necessary to enable the Note: The court shall order a social worker to conduct
father and the mother to exercise joint legal a case study of the minor and all the prospective
guardianship over the person and property of guardians and submit his report and recommendation
minor? to the court for its guidance before the scheduled
hearing. (Sec.9, A.M. No. 03-02-05-SC).
A: No. The father and the mother shall jointly
exercise legal guardianship over the person and Q: Who may be appointed as guardian of a minor?
property of their minor without the necessity of a
court appointment. In such case, this Rule shall be A: In default of parents or a court-appointed
suppletory to the provisions of the Family Code on guardian, the court may appoint a guardian of the
Guardianship (Section 1, AM -03-02-05-SC) person or property, or both, of a minor, observing,
as far as practicable, the following order of
Q: What would the court do if an issue arises as to preference:
who has the better right or title to the properties 1. Surviving grandparent and, in case several
conveyed in the guardianship proceeding? grandparents survive, the court shall
select any of them taking into account all
A: relevant considerations;
GR: The issue should be threshed out in a 2. Oldest brother or sister of the minor over
separate ordinary action as it is beyond the 21 years of age, unless unfit or
jurisdiction of the guardianship court. disqualified;
3. Actual custodian of the minor over 21
XPN: years of age, unless unfit or disqualified;
property is clear and undisputable, the 4. Any other person, who in the sound
guardianship court may issue an order directing discretion of the court would serve the
its delivery or return. best interests of the minor (Sec. 6, A.M.
No. 03-02-05-SC).
Q: What are the grounds for the appointment of a
guardian over the person or property, or both, of a Q: What are the grounds for opposition to petition
minor? of guardianship of minors?
A: A:
1. Death, continued absence, or incapacity 1. Majority of the alleged minor; or
of his parents; 2. Unsuitability of the person for whom
2. Suspension, deprivation or termination of letters are prayed for (Sec. 10, A.M. No.
parental authority; 03-02-05-SC).
3. Remarriage of surviving parent, if the
latter is found unsuitable to exercise Q: How may a petition for guardianship of minors
parental authority; or or incompetents be opposed?
4. When the best interests of the minor so
require (Sec. 4, A.M. No. 03-02-05-SC). A: Any interested person may contest the petition
by filing a written opposition and pray that the
Q: What are the factors to be considered for the petition be denied, or that letters of guardianship
appointment of guardian of minors? issue to himself, or to any suitable person named in
the opposition (Sec. 10, A.M. No. 03-02-05-SC; Sec.
4, Rule 9).
L. ADOPTION A: No. Adoption cannot be had without the written

consent of a natural parent who has allegedly
Q: What is adoption? abandoned them. Abandonment cannot be merely
presumed, it must be duly proven. Moreover, there
A: It is a juridical act, a proceeding in rem, which should be proof of emotional abandonment. (Cang
creates between two persons a relationship similar v. CA, GR No. 105308, Sept. 25, 1998).
to that which results from legitimate paternity and
filiation. Q: Is publication of the hearing for adoption
necessary for the adoption to be valid?
Q: What is the State policy on adoption?
A: Indeed, publication of the scheduled hearing for
A: It is the policy of the State to ensure that every the petition for adoption is necessary for the
child remains under the care of his or her parent/s validity of a decree of adoption but not for the
and be provided with love, care, understanding and purpose merely of taking a deposition. In taking a
security towards the full and harmonious deposition, no substantial rights are affected since
development of his personality. depositions may or may not be presented or may
even be objected to when formally offered as
Q: What is a Child Legally Available for Adoption? evidence at the trial of the main case later on. the
philosophy behind adoption statutes is to promote
A: A Child Legally Available for Adoption refers to a the welfare of the child and every reasonable
child in whose favor a certification was issued by intendment should be sustained to promote that
the DSWD that he/she is legally available for objective. (Republic v. Elepano, G.R. No. 92542, Oct.
adoption after the fact of abandonment or neglect 15, 1991).
has been proven through the submission of
pertinent documents, or one who was voluntarily Note: The necessary consequence of the failure to
committed by his/her parent(s) or legal guardian. implead the civil registrar as an indispensable party
(Sec. 2(5), R.A. 9523). and to give notice by publication of the petition for
correction of entry was to render the proceeding of
Q: What is the requirement in order that the child the trial court, so far as the correction of entry was
may be declared legally available for adoption? concerned, null and void for lack of jurisdiction both as
to party and as to the subject matter. (Republic v. CA,
G.R. No. 103695, Mar. 15, 1996).
A: There must be a certification which shall be
issued by the DSWD in lieu of a judicial order, thus
Q: What is the effect of adoption created under
making the entire process administrative in nature.
the law of a foreign country?
The certification, shall be, for all intents and
purposes, the primary evidence that the child is
A: It is entitled to registration in the corresponding
legally available in a domestic adoption and in an
civil register of the Philippines. It is to be
inter-country adoption proceeding (Sec. 8, Ibid.).
understood, however, that the effects of such
adoption shall be governed by laws of the
Q: Can minor children be legally adopted without
Philippines. (Marcaida v. Aglubat, G.R. No. L-24006,
the written consent of a natural parent on the
Nov. 25, 1967)
ground that the latter has abandoned them?
1. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION
DOMESTIC INTER-COUNTRY
Jurisdiction Family Court where adopter resides Inter-Country Adoption Board
(Petition may also be filed with Family Court
where adoptee resides; FC to endorse petition
to ICAB)
Who May adopt 1) Any Filipino citizen of legal age, in A foreigner must meet the following
possession of full civil capacity and legal rights, requirements in order to be qualified to adopt
of good moral character, has not been in the Philippines under the Inter-Country
convicted of any crime involving moral Adoption Act:
turpitude; who is emotionally and
psychologically capable of caring for children, at a) GR: at least twenty-seven (27) years of
least sixteen (16) years older than the adoptee, age and at least sixteen (16) years older
and who is in a position to support and care for than the child to be adopted, at the time

SPECIAL PROCEDINGS
his children in keeping with the means of the of application;

family. The requirement of a 16-year difference
between the age of the adopter and adoptee XPN: if the adopter is the parent by nature
may be waived when the adopter is the of the child to be adopted or the spouse
biological parent of the adoptee or is the of such parent, he/she is not required to
meet the above age requirement;
2) Any alien possessing the same qualifications b) If married, his/her spouse must jointly file
as above-stated for Filipino nationals: Provided, for the adoption;
That his country has diplomatic relations with c) With capacity to act and assume all rights
the Republic of the Philippines, that he has and responsibilities of parental authority
been living in the Philippines for at least three under his national laws, and has
(3) continuous years prior to the filing of the undergone the appropriate counseling
petition for adoption and maintains such from an accredited counselor in his/her
residence until the adoption decree is entered, country;
that he has been certified by his diplomatic or d) Not convicted of a crime involving moral
consular office or any appropriate government turpitude;
agency to have the legal capacity to adopt in his e) Eligible to adopt under his/her national
country, and that his government allows the law;
adoptee to enter his country as his adopted f) In a position to provide the proper care
child. Provided, further, That the requirements and support and to give the necessary
moral values and example to all his
qualification to adopt in his country may be children, including the child to be
waived for the following: adopted;
g) Agrees to uphold the basic rights of the
(i) A former Filipino citizen who seeks child as embodied under Philippine family
to adopt a relative within the fourth laws, the U.N. Convention on the Rights of
(4th) degree of consanguinity or the Child, and to abide by the rules and
affinity; regulations issued to implement the
(ii) One who seeks to adopt the provisions of this Act;
legitimate child of his Filipino h) Comes from a country with whom the
spouse; Philippines has diplomatic relations and
(iii) One who is married to a Filipino whose government maintains a similarly
citizen and seeks to adopt jointly authorized and accredited agency and
with his spouse a relative within the that adoption is allowed under his/her
fourth (4th) degree of consanguinity national laws; and
or affinity of the Filipino spouse. i) Possesses all the qualifications and none
of the disqualifications provided herein
(3) The guardian with respect to the ward after and in other applicable Philippine laws.
the termination of the guardianship and
clearance of his financial accountabilities.
Husband and wife shall jointly adopt, except in

the following cases:
(i) Iif one spouse seeks to adopt the

legitimate child of one spouse by
the other spouse; or
(ii) If one spouse seeks to adopt his
own illegitimate child: Provided,
however, That the other spouse has
signified his consent thereto; or
(iii) If the spouses are legally separated
from each other.
In case husband and wife jointly adopt or one

spouse adopts the illegitimate child of the
other, joint parental authority shall be
exercised by the spouses.
Supervised Trial Within the Philippines (6 month period Within the country of the adopter (Mandatory;
Custody discretionary upon the court to shorten period all expenses borne by adopter)
or exempt parties from trial custody)
Petition for May include N/A

adoption 1. Prayer for change of name
2. Rectification of simulated birth
3. Declaration that child is abandoned,
dependent or neglected child or foundling
Who may be 1. Any child legally declared available for Child legally available for adoption
adopted adoption
2. Legitimate or illegitimate child of a spouse
3. Person of legal age
Supporting 1. Income Tax Returns
Documents 2. Police Clearance
3. Character Reference
4. Family Picture
5. Birth Certificate of adopter
Publication 3 successive weeks in a newspaper of general N/A
circulation in the province or city where the
court is situated
Where to file Family Court which has jurisdiction May be made through foreign placement
application agency which will then submit application to
the ICAB
Q: What is the effect of the petition for adoption

2. DOMESTIC ADOPTION in relation to use of surnames?
a. EFFECTS OF ADOPTION A: Pursuant to Art. 189 of the Family Code which

states that the adopted child shall acquire the
Q: What are the effects of adoption? reciprocal rights and obligations arising from the
relationship of a parent and child, including the
A: right of the adopted to use the surname of the
1. All legal ties between the biological adopter, the adoptee has both the right and
parents and the adoptee shall be severed obligation to use the surname of the adopter, and
and the same shall then be vested on the that upon reaching the age of majority, he may file
adopter/s, except where the biological a petition for a change of surname, as the use by
parent is the spouse of the adopter; the adoptee of the surname of the adopter is more
2. The adoptee shall be considered the an incident rather than the object of adoption
legitimate child of the adopter/s for all proceedings. (Republic v. CA, G.R. No. 97906, May
intents and purposes and shall be entitled 21, 1992)
to all the rights and obligations provided
by law to legitimate children born to them Note: This ruling may imply that what may be included
without discrimination of any kind; and in a petition for adoption is only the first or given
3. In legal and intestate succession, the name of the adoptee and not the surname, for he has
adopter/s and the adoptee shall have the right and obligation, at least initially to use the
reciprocal rights of succession without surname of the adopter. (Agpalo, Handbook on Special
distinction from legitimate filiation. Proceedings, p. 193, 2003 ed.)
However, if the adoptee and his biological
While the right of a natural parent to name the child is
parent/s had left a will, the law on
recognized, guaranteed and protected under the law,
testamentary succession shall govern.
the so-called right of an adoptive parent to re-name an
(Secs. 16-18, R.A. 8552) adopted child by virtue or as a consequence of
adoption, even for the most noble intentions and
Note: The decree of adoption shall order the Civil moving supplications, is unheard of in law and
Registrar where the adoption was registered to issue a consequently cannot be favorably considered. To
certificate of birth which shall not bear that it is a new repeat, the change of the surname of the adoptee as a
or amended certificate and shall state among others, result of the adoption and to follow that of the
the following: registry number, registration date, name adopter does not lawfully extend to or include the
of child, sex, date of birth, place of birth, name and proper or given name. (Republic vs. Hernandez, G.R.
citizenship of adoptive mother and father, and the No. 117209, Feb. 9, 1996).
date and place of their marriage, when applicable.
[Sec. 16, 3(b)]

SPECIAL PROCEDINGS
b. INSTANCES WHEN ADOPTION MAY BE permanently residing abroad where the petition is
RESCINDED filed, the supervised trial custody is taken, and the
decree of adoption is issued outside of the
Q: What are the grounds for rescission of Philippines. [Sec. 3(a)]
adoption?
a. WHEN ALLOWED
A: Upon the petition of the adoptee, with the
assistance of the DSWD if a minor or though over Q: When may inter-country adoption be allowed?
18 is incapacitated, on any of the following grounds
committed by the adopter/s: A: It shall only be allowed when all the possibilities
1. Repeated physical and verbal for domestic adoption of the child have been
maltreatment by the adopter/s despite exhausted and that inter-country adoption is in the
having undergone counseling; best interest of the child. (Sec. 27a)
2. Attempt on the life of the adoptee;
3. Sexual assault or violence; or It is allowed when the adopter is an alien or a
4. Abandonment and failure to comply with Filipino citizen permanently residing abroad.
parental obligations (Sec. 19, Ibid.). Moreover, his qualifications include:
Note: Only the adoptee can rescind the decree of 1. At least twenty-seven (27) years of age
adoption. However, the adopter is not left without any and at least sixteen (16) years older than
remedy as he may deny to an adopted child his the child to be adopted, at the time of
legitime and by will, may freely exclude him from application unless the adopter is the
having a share in the disposable portion of his estate. parent by nature of the child to be
The new law had already abrogated or repealed the adopted or the spouse of such parent;
right of an adopter under the Civil and Family Codes to 2. If married, his/her spouse must jointly
rescind a decree of adoption (Lahom v. Sibulo, G.R. No.
file for adoption;
1439889, July 14, 2003).
3. Has the capacity to act and assume all
rights and responsibilities of parental
c. EFFECTS OF RESCISSION OF ADOPTION
authority under his national laws and has
undergone the appropriate counseling
Q: What are the effects of rescission of adoption?
from an accredited counselor in his/her
country;
A:
4. Has not been convicted of a crime
1. The parental authority of the adoptee's
involving moral turpitude;
biological parent/s, if known, or the legal
5. Is eligible to adopt under his/her national
custody of the DSWD shall be restored if
law;
the adoptee is still a minor or
6. Is in a position to provide proper care
incapacitated;
and support and to give the necessary
2. The reciprocal rights and obligations of
moral values and example to all his
the adopter/s and the adoptee to each
children, including the child to be
other shall be extinguished;
adopted;
3. The court shall order the Civil Registrar to
7. Agrees to uphold the basic rights of the
cancel the amended certificate of birth of
child as embodied under the Philippine
the adoptee and restore his or her
laws, the U.N. Convention of the Rights of
original birth certificate;
the Child, and to abide by the rules and
4. The successional rights shall revert to its
regulations issued to implement the
status prior to adoption, but only as of
provisions of this Act;
the date of judgment of judicial
8. Comes from another country with whom
rescission; and
the Philippines has diplomatic relations
5. The vested rights acquired prior to judicial
and whose government maintains a
rescission shall be respected (Sec. 23,
similarly authorized and accredited
Ibid.).
agency and that adoption is allowed
under his/her national laws; and
3. INTER-COUNTRY ADOPTION (R.A. 8043)
9. Possesses all the qualifications and none
of the disqualifications provided herein
Q: What is inter-country adoption?
and other applicable laws. (Sec. 9, R.A.
8043).
A: It refers to the socio-legal process of adopting a
Filipino child by a foreigner or a Filipino citizen
b. FUNCTIONS OF THE RTC of liberty must be actual and effective, not merely
nominal or moral. (Ilusorio v. Bildner, G.R. Nos.135789-
Q: What is the function of the RTC in inter-country 90, May 16, 2000)
adoption?
Q: What is the nature of the petition?
A: The Court, after finding that the petition is
sufficient in form and substance and a proper case A: It is an inquisition by the government at the
for inter-country adoption, shall immediately suggestion and instance of an individual, most
transmit the petition to the ICAB for appropriate probably, but still in the name and capacity of the
action. (Sec. 32, Rule on Adoption). sovereign is a proceeding in rem. It is also instituted
for the purpose of fixing the status of a person and
The application for adoption shall be filed with the that there can be no judgment entered against
RTC having jurisdiction over the child, or the Inter- anybody since there is no real plaintiff and
Country Adoption Board, through an intermediate defendant. (Alimpoos v. CA, G.R. No. L-27331, July
agency, whether governmental or an authorized 30, 1981)
and accredited agency, in the country of the
prospective adoptive parents. Note: In habeas corpus cases, the judgment in favor of
the applicant cannot contain a provision for damages.
1. CONTENTS OF THE PETITION

Q: What is the Best Interest Standard?
Q: What should a verified petition for a writ of
A: It refers to the totality of the circumstances and habeas corpus contain?
conditions as are most congenial to the survival,
protection, and feelings of security of the minor and A:
most encouraging to his physical, psychological and 1. That the person in whose behalf the
emotional development. It also means the least application is made is imprisoned or
detrimental available alternative for safeguarding restrained of his liberty;
the growth and development of the minor. (Sec. 14) 2. The officer or name of the person by
whom he is so imprisoned or restrained;
M. WRIT OF HABEAS CORPUS or, if both are unknown or uncertain, such
officer or person may be described by an
Q: What is writ of habeas corpus? assumed appellation, and the person who
is served with the writ shall be deemed
A: It is a writ directed to the person detaining the person intended;
another and commanding him to produce the body 3. The place where he is so imprisoned or
of the prisoner at a certain time and place with the restrained, if known;
day and the cause of his caption and detention to 4. A copy of the commitment or cause of
do, submit to and receive whatsoever, the court or detention of such person, if it can be
judge awarding the writ shall consider in that procured without impairing the efficiency
behalf. of the remedy; or, if the imprisonment or
restraint is without any legal authority,
Note: such fact shall appear. (Sec. 3, Rule 102)
prerogative writ which does not issue as a matter of
right but in the sound discretion of the court or judge. 2. CONTENTS OF THE RETURN
Q: To what instances may habeas corpus extend? Q: What are the contents of the return?
A: A: When the person to be produced is imprisoned

1. Cases of illegal confinement or detention or restrained by an officer, the person who makes
by which a person is deprived of his the return shall state therein, and in other cases the
liberty; and person in whose custody the prisoner is found shall
2. Cases by which the rightful custody of the state, in writing to the court or judge before whom
person is withheld from the person the writ is returnable, plainly and unequivocably:
entitled thereto. (Sec. 1, Rule 102)
1. Whether he has or has not the party in his
Note: To justify the grant of the petition, the restraint custody or power, or under restraint;
of liberty must be an illegal and involuntary 2. If he has the party in his custody or
deprivation of freedom of action. The illegal restraint power, or under restraint, the authority

SPECIAL PROCEDINGS
and the true and whole cause thereof, set process, render the judgment, or make
forth at large, with a copy of the writ, the order. (Sec. 4, Rule 102).
order, execution, or other process, if any, 6. If the person is charged or convicted of an
upon which the party is held; offense in the Philippines. (Sec. 4, Rule
3. If the party is in his custody or power or is 102).
restrained by him, and is not produced, 7. If the person is suffering imprisonment
particularly the nature and gravity of the under lawful judgment. (Sec. 4, Rule 102).
sickness or infirmity of such party by 8. In case of three-day retention of a suspect
reason of which he cannot, without for three days without charge, pursuant
danger, be brought before the court or to Sec. 18 of the Human Security Act.
judge; 9. When person is serving final sentence
4. If he has had the party in his custody or imposed by court.
power, or under restraint, and has 10. For asserting or vindicating a denial of
transferred such custody or restraint to right to bail.
another, particularly to whom, at what 11. For correcting errors in appreciation of
time, for what cause, and by what facts or of law.
authority such transfer was made. (Sec.
10, Rule 102) Note: Issuance of a writ of habeas corpus may not lie
in order to revive a settled issue of the validity of the
3. DISTINGUISH PEREMPTORY WRIT FROM writ of preliminary injunction issued in an agrarian
PRELIMINARY CITATION case allegedly on the ground of the existence of a
tenancy relationship between the parties arising from
Q: What is the difference between a preliminary their arrest for having assaulted persons in authority.
citation and a peremptory writ? (Bernarte v. CA, G.R. No. 107741, Oct. 18, 1996).
Loss of the records of the case after petitioner, by his
own admission, was already convicted by the trial
A:
court of the offense charged will bar the issuance of a
1. Preliminary citation is issued when a writ of habeas corpus. The loss must have occurred
government officer has the person in his prior to the filing of the information against him. (Feria
custody, the illegality of which is not v. CA, G.R. No. 122954, Feb. 15, 2000).
patent, to show cause why the writ of
habeas corpus should issue. It has been noted that the ORDER contains a provision
2. Peremptory writ is issued when the cause enjoining the prosecution of the Accused in the
of the detention appears to be patently Criminal Case. That is error. If the Accused was illegally
illegal and the non-compliance therewith detained because he was arrested without a
is punishable. (Lee Yick Hon v. Collector of preliminary examination, what should have been done
Customs, G.R. No. 16779, Mar. 30, 1921). was to set aside the warrant of arrest and order the
discharge of the Accused, but without enjoining the
4. WHEN NOT PROPER/APPLICABLE Municipal Judge from conducting a preliminary
examination and afterwards properly issuing a warrant
Q: When is habeas corpus not applicable? of arrest. Habeas Corpus proceedings are not meant to
determine criminal responsibility. (Alimpoos v. CA, G.R.
No. L-27331, July 30, 1981).
A:
1. When detained under a lawful cause.
In case of an illegal arrest, the petition for a writ
2. In case of invasion or rebellion or when of habeas corpus will still not prosper if the detention
public safety requires it, under Art. III, has become legal by virtue of the filing before the trial
Sec. 15, 1987 Constitution. court of the complaint against him and by the issuance
3. When in case of invasion or rebellion or of an order denying bail. (Velasco v. CA, G.R. No.
when public safety requires it, for a 118644, July 7, 1995).
period not exceeding 60 days, under Art.
7, Sec. 18, 1987 Constitution. Habeas Corpus may be had to give retroactive effect to
4. If the jurisdiction of the court to try the a previous ruling of the Supreme Court favorable to
person detained appears after the writ is the accused when the accused has already served the
allowed. (Sec. 4, Rule 102). full term for a crime which the Court has declared non-
5. If the person is in custody of an officer existent. (Gumabon v. Director of the Bureau of
under process issued by a court or by Prisons, G.R. No. L-30026, Jan. 30, 1971). However, it
virtue of a judgment or order of a court of will not lie if the penalty of imprisonment imposed by
record which has jurisdiction to issue the the court is longer than that allowed by law. Such error
of judgment may be corrected by appeal or by the

President. (Pomeroy v. Director of Prisons, G.R. No. L- effective until a copy of the order has been served
14284, Feb. 24, 1960). on the officer or person detaining the prisoner. If
the officer or person detaining the prisoner does
The writ of habeas corpus cannot be issued in cases in not desire to appeal, the prisoner shall be released.
which the Bureau of Immigration has duly ordered the
deportation of undocumented aliens, specifically those 6. DISTINGUISH FROM WRIT OF AMPARO AND
found guilty of illegally entering the Philippines with HABEAS DATA
the use of tampered and previously cancelled
passports. (Tung Chin Hui v. Rodriguez, G.R. No.
Q: Distinguish Writ of Habeas Corpus from Writ of
141938, April 2, 2001).
Amparo and Writ of Habeas Data.
Q: May a wife secure a writ of habeas corpus to
compel her husband to live with her in the A: Refer to page 205.
conjugal home?
7. RULES ON CUSTODY OF MINORS AND WRIT OF
A: No. Marital rights including coverture and living HABEAS CORPUS IN RELATION TO CUSTODY OF
in conjugal dwelling may not be enforced by the MINORS (AM No. 03-04-04-SC)
extra-ordinary writ of habeas corpus. In case the
husband refuses to see his wife for private reasons, Q: Who may file a petition for custody of minor?
he is at liberty to do so without threat of any
penalty attached to the exercise of his right. That is A: Any person may file a verified petition for the
a matter beyond judicial authority and is best left to rightful custody of a minor. The party against whom
(Ilusorio v. it may be filed shall be designated as the
Bildner, G.R. No. 139789, May 12, 2000). respondent. (Sec. 2, AM No. 03-04-04-SC).
Q: Where should a petition for custody of minor

5. WHEN WRIT DISALLOWED/DISCHARGED be filed?
Q: In what instances shall a writ be disallowed or A: Family courts in the province or city where the
discharged? petitioner resides or where the minor may be
found. (Sec. 3, AM No. 03-04-04-SC)
A:
1. In cases of supervening events such as Q: Whether Family Courts have concurrent
issuance of a process and filing of an jurisdiction with the Supreme Court and the Court
information (Velasco v. CA, G.R. No. of Appeals in petitions where the custody of minors
118844, July 7, 1995); is at issue?
2. In cases of improper arrest or lack of
preliminary investigation (Paredes v. A: Yes. The Court of Appeals and Supreme Court
Sandiganbayan, G.R. No. 89989, Jan. 28, have concurrent jurisdiction with family courts in
1991); and habeas corpus cases where the custody of minors is
3. In cases of invalid arrest due to involved. The provisions of RA 8369 must be read
deportation cases cured by filing of
deportation proceedings (Santos v. family courts have concurrent jurisdiction with the
Commissioner of Immigration, G.R. No.L- Court of Appeals and the Supreme Court in
25694, Nov. 29, 1976). petitions for habeas corpus where the custody of
minors is at issue. (Thornton v. Thornton, G.R. No.
Note: In all petitions for habeas corpus, the court must 154598, Aug. 16, 2004).
detention- from the moment petitioner was taken into Q: What are the contents of the verified petition?
custody up to the moment the court passes upon the
merits of the petition and only after such a scrutiny A:
can the court satisfy itself that the due process clause 1. The personal circumstances of the petitioner
of the Constitution has been satisfied. (Bernarte v. CA, and of the respondent.
G.R. No. 107741, Nov. 18, 1996) 2. The name, age and present whereabouts of
the minor and his or her relationship to the
When the court or judge has examined into the petitioner and the respondent.
cause of caption and restraint of the prisoner, and 3. The material operative facts constituting
is satisfied that he is unlawfully imprisoned or deprivation of custody.
restrained, he shall order his discharge from
confinement, but such discharge shall not be

SPECIAL PROCEDINGS
4. Such other matters which are relevant to emotional violence which endangers the
the custody of the minor. safety and best interests of the minor;
5. Certificate of Non-Forum Shopping signed 2. The desire and ability of one parent to
personally by the petitioner. (Sec. 4, AM No. foster an open and loving relationship
03-04-04-SC) between the minor and the other parent;
3. The health, safety and welfare of the
Q: When is a child not allowed to be separated minor;
from the mother? 4. Any history of child or spousal abuse by
the person seeking custody or who has
A: Under Article 213 (2) of the Family Code, no child had any filial relationship with the minor,
under 7 years of age shall be separated from the including anyone courting the parent;
mother, unless the court finds compelling reasons 5. The nature and frequency of contact with
to order otherwise. both parents;
6. Habitual use of alcohol, dangerous drugs
Q: When will the court take into consideration the or regulated substances;
choice of the child? 7. Marital misconduct;
8. The most suitable physical, emotional,
A: The child, who is over 7 years of age, may choose spiritual, psychological and educational
which parent he prefers to live with, unless the environment for the holistic development
parent so chosen is unfit to take charge of the child and growth of the minor; and
by reason of moral depravity, habitual drunkenness, 9. The preference of the minor over seven
incapacity, or poverty. (Art. 213, Family Code) years of age and of sufficient
discernment, unless the parent chosen is
Note: If both parents are unfit, the court may unfit. (Sec. 14, AM No. 03-04-04-SC)
designate other persons or an institution to take
charge of the child, such as the paternal or maternal Q: Would a decision rendering judgment on the
grandparent of the child, or his oldest brother or sister, issue of custody of a child in a nullity of marriage
or some reputable and discreet person. case constitute as res judicata on a pending
habeas corpus case on the same matter?
Q: What should be considered in awarding the
custody of minor? A: Yes. By filing the case for declaration of nullity of
marriage petitioner automatically submitted the
A: The court shall consider the best interests of the issue of the custody of the child as an incident
minor and shall give paramount consideration to his thereof. Section 21 of the "Rule on Declaration Of
material and moral welfare. (Sec. 14, AM No. 03-04- Absolute Nullity Of Void Marriages and Annulment
04-SC). of Voidable Marriages" directs the court taking
jurisdiction over a petition for declaration of nullity
Q: What is the Best Interest Standard? of marriage to resolve the custody of common
children, by mere motion of either party, it could
A: It refers to the totality of the circumstances and only mean that the filing of a new action is not
conditions as are most congenial to the survival, necessary for the court to consider the issue of
protection, and feelings of security of the minor and custody of a minor. (Yu v. Yu, G.R. No. 164915,
most encouraging to his physical, psychological and March 10, 2006).
emotional development. It also means the least
detrimental available alternative for safeguarding Q: What are the stages in the pre-trial?
the growth and development of the minor. (Sec. 14,
AM No. 03-04-04-SC) A:
1. First stage the parties may agree on the
Q: What are the other factors that the court may custody of the minor.
consider in awarding custody? 2. Second stage the trial court will direct
the parties to secure the services of a
A: mediator if the parties do not agree on
1. Any extrajudicial agreement which the the custody of the minor. (Sec. 12, AM
parties may have bound themselves to No. 03-04-04-SC)
comply with respecting the rights of the
minor to maintain direct contact with the Note: If the second stage does not produce an
non custodial parent on a regular basis, amicable settlement, the court will proceed with the
except when there is an existing threat or pre-trial conference. Pre-trial is mandatory. (Sec. 12,
danger of physical, mental, sexual or AM No. 03-04-04-SC)
Q: What is the order of preference in awarding A: No, the court should conduct thorough trial on
provisional custody? all matters relevant to the welfare and interests of
the child. (Laxamana v. Laxamana, G.R. No. 144763,
A: As far as practicable, the order of preference Sept. 3, 2002)
shall be observed:
1. Both parents jointly; Q: Can the minor child be brought out of the
2. Either parent, taking into account all country without leave from court while the
relevant considerations, especially the petition is pending?
choice of the minor over seven years of
age and of sufficient discernment, unless A: The minor child subject of the petition shall not
the parent chosen is unfit; be brought out of the country without prior order
3. The grandparent, or if there are several from the court while the petition is pending.
grandparents, the grandparent chosen by
the minor over seven years of age and of The court, motu proprio or upon application under
sufficient discernment, unless the oath, may issue ex parte a hold departure order,
grandparent chosen is unfit or addressed to the Bureau of Immigration and
disqualified; Deportation, directing it not to allow the departure
4. The eldest brother or sister over twenty- of the minor from the Philippines without the
one years of age, unless he or she is unfit permission of the court. (Sec. 16, AM No. 03-04-04-
or disqualified; SC)
5. The actual custodian of the minor over
twenty-one years of age, unless the N. WRIT OF AMPARO (AM No. 07-9-12-SC)
former is unfit or disqualified; or
6. Any other person or institution the court Q: What is writ of amparo?
may deem suitable to provide proper care
and guidance for the minor. A: It is a remedy available to any person whose
right to life, liberty and security is violated or
Q: May the court award temporary visitation threatened with violation by an unlawful act or
rights in the provisional custody order? omission of a public official or employee, or of a
private individual or entity. The writ shall cover
A: Yes, the court shall provide in its order awarding extralegal killings and enforced disappearances or
provisional custody appropriate visitation rights to threats thereof. (Sec. 1)
the non-custodial parent or parents, unless the
court finds said parent or parents unfit or Note: The remedy provides rapid judicial relief as it
disqualified. partakes of a summary proceeding that requires only
substantial evidence to make the appropriate reliefs
Q: What should the court award after the hearing? available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond
A: reasonable doubt, or liability for damages requiring
1. Care, custody and control of each child as preponderance of evidence, or administrative
responsibility requiring substantial evidence that will
will be for its best interest.
require full and exhaustive proceedings. (Deliberations
2. Court may order either or both parents to
of the Committee on the Revision of the Rules of Court,
support or help support the child, Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007 and Sept.
irrespective of who may be its custodian. 20, 2008)
The fact that the father has recognized
the child may be a ground for ordering Q: What are extralegal killings?
him to give support, but not for giving him
custody of the child. A: Killings committed without due process of law,
3. Court may permit the parent who is legal safeguards or judicial proceedings. (Secretary
deprived of care and custody to visit the of National Defense v. Manalo, G.R. No. 180906,
child or have temporary custody thereof Oct. 7, 2008) These include the illegal taking of life
in an order that is just and reasonable. regardless of the motive, summary and arbitrary
(Sec. 18, AM No. 03-04-04-SC) executions, salvaging even of suspected criminals,
and threats to take the life of persons who are
Q: May the court award the custody of the minors openly critical of erring government officials and
based merely on psychiatric report and agreement the like.
of the parties?

SPECIAL PROCEDINGS
Q: What are enforced disappearances? under Section 1, Rule 27 of the Rules of Civil
Procedure which provides in relevant part, viz:
A: An arrest, detention or abduction of a person by
a government official or organized groups or private Section 1. Motion for production or inspection
individual acting with the direct or indirect order. Upon motion of any party showing good
acquiescence of the government; the refusal of the cause therefor, the court in which an action is
State to disclose the fate or whereabouts of the pending may (a) order any party to produce
person concerned or a refusal to acknowledge the and permit the inspection and copying or
deprivation of liberty which places such persons photographing, by or on behalf of the moving
outside the protection of law. (Secretary of National party, of any designated documents, papers,
Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) books of accounts, letters, photographs,
objects or tangible things, not privileged,
1. COVERAGE which constitute or contain evidence material
to any matter involved in the action and which
Q: What is the scope of the Writ of amparo?
A: It covers extralegal killings and enforced A search warrant is a court order issued by a judge
disappearances or threats thereof. It is available to or magistrate judge that authorizes the law
any person whose right to life, liberty and security enforcement officers to conduct a search of a
is violated or threatened with violation by an person or location for evidence of a crime and to
unlawful act or omission of a public official or confiscate evidence if it is found. A writ of amparo
employee, or of a private individual or entity. is a form of constitutional relief.
The petition for a writ of amparo is a remedy 4. WHO MAY FILE

available to any person whose right to life, liberty
and security is violated or threatened with violation Q: Who may file the petition?
by an unlawful act or omission of a public official or
employee, or of a private individual or entity. The A: Any aggrieved party may file the petition. It may
writ shall cover extralegal killings and enforced also be filed by any qualified person or entity in the
disappearances or threats thereof. following order:
2. DISTINGUISH FROM HABEAS CORPUS AND 1. Any member of the immediate family,
HABEAS DATA namely: the spouse, children and parents
of the aggrieved party;
Q: Distinguish Writ of Habeas Corpus from Writ of 2. Any ascendant, descendant or collateral
Amparo and Writ of Habeas Data. relative of the aggrieved party within the
fourth civil degree of consanguinity or
A: Refer to page 205. affinity, in default of those mentioned in
the preceding paragraph; or
3. DIFFERENCES BETWEEN WRIT OF AMPARO AND 3. Any concerned citizen, organization,
SEARCH WARRANT association or institution, if there is no
known member of the immediate family
Q: What is the difference between a Writ of or relative of the aggrieved party.
Amparo from a Search Warrant?
NOTE: The filing of a petition by the aggrieved party
A: In the October 7, 2008 decision of the Supreme suspends the right of all other authorized parties to file
Court in the case of The Secretary of National similar petitions. Likewise, the filing of the petition by
Defense vs. Manalo, he an authorized party on behalf of the aggrieved party
production order under the Amparo Rule should suspends the right of all others, observing the order
not be confused with a search warrant for law established herein. (Sec. 2).
enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a 5. CONTENTS OF RETURN
protection of the people from the unreasonable
intrusion of the government, not a protection of the Q: What is the content of the verified return?
government from the demand of the people such
as respondents. A: Within seventy-two (72) hours after service of
Instead, the Amparo production order may be the writ, the respondent shall file a verified written
likened to the production of documents or things return together with supporting affidavits which
shall, among other things, contain the following:
1. The lawful defenses to show that the A: The omnibus waiver rules states that all defenses
respondent did not violate or threaten not raised in the return are deemed waived. (Sec.
with violation the right to life, liberty and 10).
security of the aggrieved party, through
any act or omission; 8. PROCEDURE FOR HEARING
2. The steps or actions taken by the
respondent to determine the fate or Q: What is the nature of the hearing?
whereabouts of the aggrieved party and
the person or persons responsible for the A: The hearing on the petition shall be summary.
threat, act or omission; However, the court, justice or judge may call for a
3. All relevant information in the possession preliminary conference to simplify the issues and
of the respondent pertaining to the determine the possibility of obtaining stipulations
threat, act or omission against the and admissions from the parties. (Sec. 12).
aggrieved party; and
4. If the respondent is a public official or Q: How long should the hearing last?
employee, the return shall further state
the actions that have been or will still be A: The hearing shall be from day to day until
taken: completed and given the same priority as petitions
a. to verify the identity of the aggrieved for habeas corpus. (Sec. 13)
party;
b. to recover and preserve evidence 9. INSTITUTION OF SEPARATE ACTION
related to the death or
disappearance of the person Q: May a separate action be filed after filing a
identified in the petition which may petition for a writ of amparo?
aid in the prosecution of the person
or persons responsible; A: Yes. It does not preclude the filing of separate
c. to identify witnesses and obtain criminal, civil or administrative actions. (Sec. 21)
statements from them concerning
the death or disappearance; 10. EFFECT OF FILING A CRIMINAL ACTION
d. to determine the cause, manner,
location and time of death or Q: What is the effect if a prior criminal action has
disappearance as well as any pattern been filed?
or practice that may have brought
about the death or disappearance; A: No petition for a writ of amparo shall be filed.
e. to identify and apprehend the The reliefs under the writ shall be available by
person or persons involved in the motion in the criminal case. (Sec. 22)
death or disappearance; and The procedure under this Rule shall govern the
f. to bring the suspected offenders disposition of the reliefs available under the writ of
before a competent court. amparo.
5. Other matters relevant to the
investigation, its resolution and the 11. CONSOLIDATION
prosecution of the case.
Q: What happens if criminal action is filed
Note: A general denial of the allegations in the petition subsequent to a petition for writ of amparo?
shall not be allowed.
A: The petition for the writ shall be consolidated
6. EFFECTS OF FAILURE TO FILE A RETURN with criminal action. (Sec. 23)
Q: What happens when the respondent fails to file Q: What happens if a criminal action and a
a return? separate civil action are filed subsequent to a
petition for writ of amparo?
A: The court, justice or judge shall proceed to hear
the petition ex parte. (Sec. 9) A: The petition for writ of amparo shall be
consolidated with the criminal action.
7. OMNIBUS WAIVER RULE
Note: After consolidation, the procedure under this
Q: What is the Omnibus Waiver Rule? Rule shall continue to apply to the disposition of the
reliefs in the petition.

SPECIAL PROCEDINGS
12. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT
Q: What are interim reliefs available?
A:
PETITIONER RESPONDENT
1. Temporary protection order;
2. Inspection order; 1. Inspection order;
3. Production order; 2. Production order. (Sec. 15)
4. Witness protection order. (Sec. 14)
HOW INITIATED THE COURT SHALL

Temporary Upon motion or motu proprio Order the petitioner or the aggrieved party and any
Protection Order 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.
Inspection Order Upon verified motion and after due Order any person in possession or control of a
hearing 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.
Production Order Upon verified motion and after due order any person in possession, custody or control of
hearing any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute
or contain evidence relevant to the petition or the
return, to produce and permit their inspection, copying
or photographing by or on behalf of the movant.
Witness Upon Motion or Motu Proprio refer the witnesses to the Department of Justice for
Protection Order 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.
13. QUANTUM OF PROOF IN APPLICATION FOR regularly performed to evade responsibility or

ISSUANCE OF WRIT OF AMPARO liability.
Q: What is the quantum of evidence required in a Note: No writ of amparo may be issued unless there is
petition for a writ of amparo? a clear allegation of the supposed factual and legal
basis of the right sought to be protected. A threatened
A: The parties shall establish their claims by demolition of a dwelling by virtue of a final judgment
substantial evidence. (Sec. 17) of the court is not included among the enumeration of
The respondent who is a private individual or entity rights as stated in the above-quoted Section 1 for
must prove that ordinary diligence as required by which the remedy of a writ of amparo is made
available. Their claim to their dwelling, assuming they
the applicable laws, rules and regulations was
still have any despite the final and executory judgment
observed in the performance of duty.
adverse to them, does not constitute right to life,
liberty and security. There is, therefore, no legal basis
The respondent who is a public official or employee for the issuance of the writ of amparo. (Canlas v.
must prove that extraordinary diligence as required Napico Homeowners Association, G.R. No. 182795,
by applicable laws, rules and regulations was June 5, 2008).
observed in the performance of duty.
Q: Raymond and Reynaldo Manalo escaped from
The respondent public official or employee cannot captivity and surfaced of the armed forces. But
invoke the presumption that official duty has been while the two admit that they are no longer in
detention and are physically free, they assert, that property, and may be ordered destroyed by the
they are not free in every sense of the word as court.
their movements continue to be restricted for fear
that the people they have named in their judicial 3. DISTINGUISH FROM HABEAS CORPUS AND WRIT
affidavits and testified against are still at large and OF AMPARO
have not held accountable. The Manalo brothers
claim that they are under the threat of being once Q: Distinguish Writ of Habeas Corpus from Writ of
again abducted, kept captive or even killed, which Amparo and Writ of Habeas Data.
constitute a direct violation of their right to
security of person. They filed a petition for writ of A: Refer to page 205.
amparo. Should the court granted the petition?
A: 4. WHO MAY FILE
freedom from threat is violated by the apparent
threat to their life, liberty and security of person. Q: Who may file the petition?
Their right to security as a guarantee of protection
by the government is likewise violated by the A: Any aggrieved party may file a petition for the
ineffective investigation and protection on the part writ of habeas data. However, in cases of extralegal
of the military. In blatant violation of guarantees to killings and enforced disappearances, the petition
life, liberty and security, these rights are snuffed may be filed by:
out from victims of extralegal killings and enforced
disappearances. The writ of amparo is a tool that 1. Any member of the immediate family of
gives voice to preys of silent guns and prisoners the aggrieved party, namely: the spouse,
behind secret walls. (Secretary of National Defense children and parents; or
v. Manalo, G.R. No. 180906, Oct. 7, 2008) 2. In default thereof, any ascendant,
descendant or collateral relative of the
O. WRIT OF HABEAS DATA (AM No. 08-1-16-SC) aggrieved party within the fourth civil
degree of consanguinity or affinity. (Sec.
1. SCOPE OF WRIT 2)
Q: What is the scope of the writ? 5. CONTENTS OF PETITION
A: Q: What are the contents of the verified petition?

right to privacy in life, liberty or security is violated
or threatened by an unlawful act or omission of a A:
public official or employee, or of a private individual 1. The personal circumstances of the
or entity engaged in the gathering, collecting or petitioner and the respondent
storing of data or information regarding the person, 2. The manner the right to privacy is
family, home and correspondence of the aggrieved violated or threatened and how it affects
party. the right to life, liberty or security of the
aggrieved party
2. AVAILABILITY OF WRIT 3. The actions and recourses taken by the
petitioner to secure the data or
Q: What is writ of habeas data? information
4. The location of the files, registers or
A: It is a remedy available to any person whose databases, the government office, and
right to privacy in life, liberty or security is violated the person in charge, in possession or in
or threatened by an unlawful act or omission of a control of the data or information, if
public official or employee, or of a private individual known
or entity engaged in the gathering, collecting or 5. The reliefs prayed for, which may include
storing of data or information regarding the person, the updating, rectification, suppression or
family, home and correspondence of the aggrieved destruction of the database or
party. It is a procedure designed to safeguard information or files kept by the
individual freedom from abuse in the information respondent. In case of threats, the relief
age. (Sec. 1) may include a prayer for an order
enjoining the act complained of.
Information or data written, tends to threaten 6. Such other relevant reliefs as are just and
violation of constitutional right to life, liberty or equitable. (Sec. 6)

SPECIAL PROCEDINGS
6. CONTENTS OF RETURN A:
1. When a subsequent criminal action is
Q: What should the respondent allege in his filed, the Petition for the writ of Habeas
verified return? Data shall be consolidated with the
criminal action.
A: The respondent, within 5 working days from the 2. When a criminal action and a separate
service of the writ, unless reasonably extended by civil action are filed subsequent to a
the Court, shall allege: petition for a writ of habeas data, the
petition shall be consolidated with the
1. The lawful defenses such as national criminal action.
security, state secrets, privileged
communication, confidentiality of the Note: After consolidation, the procedure under the
source of information of media and Rule shall continue to govern the disposition of the
others; reliefs in the petition. (Sec. 21)
2. In case of respondent in charge, in
possession or in control of the data or 9. EFFECT OF FILING A CRIMINAL ACTION
information subject of the petition:
a. A disclosure of the data or Q: What is the effect of an institution of a criminal
information about the petitioner, the action?
nature of such data or information,
and the purpose for its collection; A: No separate petition for the writ shall be filed.
b. The steps or actions taken by the The reliefs under the writ shall be available to an
respondent to ensure the security aggrieved party by motion in the criminal case. (Sec.
and confidentiality of the data or 22).
information; and
c. The currency and accuracy of the 10. INSTITUTION OF SEPARATE ACTION
data or information held; and
3. Other allegations relevant to the Q: Does the filing of a petition for the writ of
resolution of the proceeding. habeas data prohibit the filing of separate
Note: A general denial of the allegations in the petition criminal, civil or administrative actions?
shall not be allowed.
A: The filing of a petition for the writ of habeas data
7. INSTANCES WHEN PETITION BE HEARD IN shall not preclude the filing of separate criminal,
CHAMBERS civil or administrative actions. (Sec. 20).
Q: What are the instances when a petition for a 11. QUANTUM OF PROOF IN APPLICATION FOR
writ of habeas data may be heard in chambers? WRIT OF HABEAS DATA
A: It may be conducted where the respondent Q: What is the quantum of evidence required in a
invokes the defense that the release of the data or petition for a writ of habeas data?
information in question shall compromise national
security or State secrets, or when the data or A: The court shall render judgment within (10) days
security and that it cannot be divulged to the public from the time the petition is submitted for decision.
due to its nature or privileged character. (Sec. 12) If the allegations in the petition are proven by
substantial evidence, the court shall enjoin the act
8. CONSOLIDATION complained of, or order the deletion, destruction,
or rectification of the erroneous data or
Q: What happens when a criminal and/or civil information and grant other relevant reliefs as may
action is filed after the filing of the petition for be just and equitable; otherwise, the privilege of
writ of habeas data? the writ shall be denied. (Sec. 16.).
Q: What are the differences between the writs?
A:
HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN
Literal interpreta on
It is a Filipino word which
You have the body To protect You have the data

Governing rule
Rule 102 A.M. No. 07-9-12-SC A.M. No. 08-1-16-SC A.M. No. 09-6-8-SC
Descrip on
Writ directed to Remedy available to any Remedy available to any person Special remedy available
the person person whose right to whose right to privacy in life, liberty to a natural or juridical person,
detaining another, life, liberty, and security or security is violated or threatened entity authorized by law,
commanding him is violated or threatened by an unlawful act or omission of a -
to produce the with violation by an public official or employee, or of a governmental organization, or
body of the unlawful act or omission private individual or entity engaged any public interest group
accredited by or registered with
prisoner at a of a public official or in the gathering, collecting, or
any government agency, on
designated time employee, or of a storing of data or information
behalf of persons whose
and place, with the private individual or regarding the person, family, home
constitutional right to a
day and cause of entity. and correspondence of the balanced and healthful ecology
his capture and aggrieved party. is violated, or threatened with
detention, to do, violation by an unlawful act or
submit to, and omission of a public official or
receive whatsoever employee, or private individual
the court or judge or entity, involving
awarding the writ environmental damage of such
shall consider in magnitude as to prejudice the
that behalf. life, health or property of
inhabitants in two or more cities
or provinces.
Coverage
Involves the right to life,
Involves the right Involves the right to privacy in life,
liberty, and security of
to liberty of and liberty, and security of the Constitutional right to a
the aggrieved party and
rightful custody by aggrieved party and covers balanced and healthful
covers extralegal killings
the aggrieved extralegal killings and enforced ecology.
and enforced
party. disappearances.
disappearances.
Rights violated
There is an actual or
There is an actual There is an actual or
There is an actual or threatened
violation of the threatened violation of
right to a healthful and
the aggrieved
right. balanced ecology involving
right. right.
environmental damage.
Where to le
RTC where the petitioner or
RTC or any judge RTC of the place where
respondent resides, or that which has
thereof, CA or any the threat, act or
jurisdiction over the place where the
omission was committed
member thereof in data or information is gathered,
or any of its elements
instances collected or stored, at the option of In SC or any stations of the CA.
occurred; SB or any
authorized by law; the petitioner; or with SC, CA or SB
justice thereof; CA or any
or SC or any when the action concerns public data
justice thereof; SC or any
member thereof. files or government offices.
justice thereof.
Habeas Corpus Amparo Habeas Data Kalikasan

Who may le a pe on
In the following order: A natural or
1. Any aggrieved party;
1. Any member of the juridical person,
2. However, in cases of extralegal
immediate family entity authorized
killings and enforced
2. Any ascendant,
disappearances:
1. Party for whose relief descendant, or organization, non-
a. Any member of the
it is intended; or collateral relative of governmental
immediate family
the aggrieved party organization, or
th b. Any ascendant,
2. Any person on his within the 4 civil any public interest
descendant, or collateral
behalf degree of group accredited
relative of the aggrieved
consanguinity or by or registered
party within the 4th civil
affinity with any
degree of consanguinity
3. Any concerned citizen, government
or affinity
organization, agency.

SPECIAL PROCEDINGS
association or
institution
Respondent
Public official or employee or a
private individual or entity engaged
Public official or employee in the gathering, collecting or storing Public official or
May or may not be an
or a private individual or of data or information regarding the employee, private
officer.
entity. person, family, home and individual or entity.
correspondence of the aggrieved
party.
Enforceability of the writ
If granted by SC or CA:
enforceable anywhere In
the Philippines; Enforceable anywhere in the Philippines regardless of who issued Enforceable
the same anywhere in the
If granted by RTC: Philippines
enforceable only within
the judicial district
Docket fees
Payment is required Payment is required.
Petitioner is
Petitioner is exempted
exempted from
Note: Rule on indigent from payment Note: Rule on indigent petitioner
payment
petitioner applies. applies.
Service of writ
Served upon the person to
whom it is directed, and if Served upon the
Served upon the
not found or has not the Served upon the respondent respondent
respondent personally; or
prisoner in his custody, to personally; or substituted service personally; or
substituted service
the other person having or substituted service.
exercising such custody
Person who makes the return
Officer by whom the
prisoner is imprisoned or
the person in whose Respondent Respondent Respondent
custody the prisoner is
found
When to le a return
The respondent shall file a verified
Within 5 working days
written return together with
after service of the writ, Within non-
supporting affidavits within 5
On the day specified in the the respondent shall file a extendible period
working days from service of the
writ verified written return of 10 days after the
writ, which period may be
together with supporting service of writ.
reasonably extended by the Court
affidavits.
for justifiable reasons.

Return
If issued by RTC: returnable If issued by RTC: returnable
before such court; before such court;
If granted by the SC or If issued by SB or CA or any If issued by SB or CA or any of

CA: returnable before of their justices: their justices: returnable
the court or any returnable before such before such court or to any
member or before RTC court or to any RTC of the RTC of the place where the
If issued by SC, returnable
or any judge thereof; place where the threat, act petitioner or respondent
before such court or CA.
or omission was resides or that which has
If granted by RTC: committed or any of its jurisdiction over the place
returnable before such elements occurred; where the data or
court information is gathered,
If issued by SC or any of its collected or stored;
justices: returnable before
such court, or before SB, If issued by SC or any of its
CA, or to any RTC of the justices: returnable before

place where the threat, act such court, or before SB, CA,
or omission was or to any RTC of the place
committed or any of its where the petitioner or
elements occurred respondent resides or that
which has jurisdiction over
the place where the data or
information is gathered,
collected or stored
General denial
Not prohibited. Not allowed. Not allowed. Not allowed.
Liability of the person to whom the writ is directed if he refuses to make a return
Forfeit to the aggrieved
party the sum of Imprisonment or fine for Imprisonment or fine for
Indirect contempt.
P1000, and may also be committing contempt. committing contempt.
punished for contempt.
Hearing
The hearing including the
preliminary conference shall
Summary hearing shall be Summary hearing shall be
Date and time of not extend beyond sixty (60)
conducted not later than 7 conducted not later than 10
hearing is specified in days and shall be given the
days from the date of working days from the date
the writ. same priority as petitions for
issuance of the writ. of issuance of the writ.
the writs of habeas corpus,
amparo and habeas data.
Period of appeal
Within fifteen (15) days from
Within 48 hours from
5 working days from the 5 working days from the date the date of notice of the
notice of the judgment
date of notice of the of notice of the judgment or adverse judgment or denial
or final order appealed
adverse judgment. final order. of motion for
from.
reconsideration.

Prohibited pleadings
1. Motion to dismiss; 1. Motion to dismiss;
2. Motion for extension of time to file opposition, 2. Motion for extension of
affidavit, position paper and other pleadings; time to file return;
3. Dilatory motion for postponement; 3. Motion for
4. Motion for a bill of particulars; postponement;
5. Counterclaim or cross - claim; 4. Motion for a bill of
6. Third - party complaint; particulars;
None 7. Reply; 5. Counterclaim or cross-
8. Motion to declare respondent in default; claim;
9. Intervention; 6. Third-party complaint;
10. Memorandum; 7. Reply; and
11. Motion for reconsideration of interlocutory orders or 8. Motion to declare
interim relief orders; and respondent in default.
12. Petition for certiorari, mandamus or prohibition
against any interlocutory order.
Note: In writ of amparo, one rare instance where the SB, notwithstanding its status as a special court, is vested with
jurisdiction co-equal with SC, CA and RTC. Take note that CTA, albeit acting as a special court being in the same rank of
CA and SB, is not vested with jurisdiction to issue writ of amparo.
P. CHANGE OF NAME
1. DIFFERENCES UNDER RULE 103, R.A. 9048 AND RULE 108
Discuss the differences among Rule 103 (Change of Name), R.A. 9048 (Administrative Correction of Clerical or
Typographical Error/Change of first name or nickname) and Rule 108 (Cancellation or Correction of Clerical or
Typographical Error).

SPECIAL PROCEDINGS
A:
Rule 103 R.A. 9048 Rule 108
Scope
Correction of or substantial errors
Change of first name or Change of first name or nickname/ correction
of entries in the Civil Registry/
surname. of clerical errors of entries in the Civil Registry.
cancellation of entries.
Nature
Judicial; hearing is necessary
Summary if it involves clerical
Judicial; hearing is necessary. Administrative; hearing is not necessary. errors
Adversarial if it involves substantial
errors.
Ini ated by
Verified petition. Sworn affidavit. Verified petition.
Where to le
RTC of the province where the 1. Local Civil Registry office where the record
RTC where the corresponding civil
petitioner resides at least 3 is kept;
registry is located.
months. 2. Consul general.
Where to appeal , in case of adverse decision
Civil Registrar General under Sec. 7 or CA
CA under Rule 41 CA under Rule 41
under Rule 43
Who may le
Petition is filed by the person of legal age who
must have a direct and personal interest in the
correction:
1. Owner of the record; Any person interested in the act,
Filed by the person desiring to
2. event, decree or order concerning
change his name.
brothers, sisters, grandparents, guardian; the civil status of persons.
or
3. Anyone authorized by law or owner of the
record.
Who must be no ed
Solicitor General/ Interested Interested parties/Solicitor General need not be Civil registrar as respondent; Solicitor
parties. notified. General/ Interested parties.
Publica on
Order for hearing shall be Order for hearing in case of change of first
Order for hearing shall be published
published once a week for 3 name/nickname shall be published once a week
once a week for 3 consecutive weeks.
consecutive weeks. for 2 consecutive weeks.
Grounds
1. Name is ridiculous, tainted
with dishonor or extremely
difficult to write or
pronounce;
2. Habitual and continuous used
and been known since
childhood by a Filipino name,
unaware of her alien 1. The petitioner finds the first name or
parentage; nickname to be ridiculous, tainted with
3. Consequence of a change of dishonor or extremely difficult to write or
status; pronounce.
4. A sincere desire to adopt a 2. The new first name or nickname has been
N/A
Filipino name to erase signs of habitually and continuously used by the
former alienage, all in good petitioner and he has been publicly known by
faith and without prejudicing that by that first name or nickname in the
anybody; community: or
5. The change will avoid 3. The change will avoid confusion.
confusion; or
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 should
prejudice public interest.

(Republic v. CA, G.R. No.
88202, Dec. 14, 1998).
Entries subject to correc on

1. Correction of clerical or 1. Correction of clerical or typographical errors in 1. Births;
typographical errors in any the civil registry 2. Marriages;
entry in civil registry 2. change of first name or nickname in the civil 3. Deaths;
documents, except registry 4. Legal separations;
corrections involving the 5. Judgments of annulments of
change in sex, age, nationality marriage;
and status of a person; and 6. Judgments declaring marriages
2. Change of a person's first void from the beginning;
name or nickname in his or 7. Legitimations;
her civil registry. 8. Adoptions;
9. Acknowledgments of natural
children;
10. Naturalization;
11. Election, loss or recovery of
citizenship;
12. Civil interdiction;
13. Judicial determination of
filiation; and
14. Change of name. (Sec. 2)
NOTE: Clerical/typographical error refer to an obvious mistake committed in clerical work, either in writing, copying,
transcribing, or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or place of birth
and the like, and can be corrected or changed only by reference to other existing record or records. [Sec. 2(3) of RA 9048]
nationality of a party, it is deemed substantial, and the

2. GROUNDS FOR CHANGE OF NAME procedure to be adopted is adversary. (Republic v.
Bautista, 155 SCRA 1, Oct. 26, 1987).
Q: What are the grounds for change of name
under Rule 103? Q. ABSENTEES
A: 1. PURPOSE OF THE RULE

1. Name is ridiculous, tainted with dishonor
or extremely difficult to write or Q: What is the purpose of this Rule?
pronounce;
2. Habitual and continuous used and been A: It is to appoint an administrator over the
known since childhood by a Filipino name, properties of the absentee. This is proper only
unaware of her alien parentage; where the absentee has properties to be
3. Consequence of a change of status; administered.
4. A sincere desire to adopt a Filipino name When a person disappears from his domicile his
to erase signs of former alienage, all in whereabouts being unknown, and without having
good faith and without prejudicing left an agent to administer his property, or the
anybody; power conferred upon the agent has expired, any
interested party, relative or friend, may petition the
5. The change will avoid confusion; or
RTC of the place where the absentee resided before
6. When the surname causes
his disappearance for the appointment of a person
embarrassment and there is no showing
to represent him provisionally in all that may be
that the desired change of name was for a
necessary.
fraudulent purpose or that the change of
name should prejudice public interest.
Note: If the absentee left no properties, such petition
(Republic v. CA, G.R. No. 88202, Dec. 14, is not necessary. (Reyes v. Alejandro, G.R. No. L-46187,
1998). Jan. 16, 1986)
Note: Under Rule 108, change of name may either be

summary or adversary in nature. If the correction
sought to be made in the civil registrar is clerical, then
the procedure to be adopted is summary. If the
rectification affects the civil status, citizenship or

SPECIAL PROCEEDINGS
2. WHO MAY FILE A PETITION; WHEN TO FILE Note: Rule 108, when all the procedural requirements
thereunder are followed, is the appropriate adversary
Q: Who may file a petition for declaration of proceeding to effect substantial correction and
absence and appointment of administrator or changes in the entries of civil register (Lee v. CA, G.R.
trustee? No. L-118387, Oct. 11, 2001).
A:
1. Spouse present; Q: What are the requisites of adversarial
2. Heirs instituted in the will; proceedings?
3. Relatives who will succeed by intestacy;
4. Those who have over the property of the A:
absentee some right subordinated to the 1. Proper petition is filed where the Civil
condition of his death. (Sec. 2, Rule 107) Registrar and all parties interested are
impleaded;
Q: When should a petition for declaration of 2. The order of hearing must be published
absence and appointment of administrator or once a week for three consecutive weeks;
trustee be filed? 3. Notice must be given to the Civil Registrar
and all parties affected thereby;
A: 4. The civil registrar and any person
1. After 2 years: interested, may within 15 days from
a. From his disappearance and without notice or from the last date of
any news about the absentee; or publication, files his opposition thereto;
b. of the last news about the absentee. and
2. After 5 years If he left an administrator 5. Full blown trial. (Republic v. Valencia,
of his property. (Sec. 2, Rule 107) supra.)
R. CANCELLATION OR CORRECTION OF ENTRIES IN 1. ENTRIES SUBJECT TO CANCELLATION OR

THE CIVIL REGISTRY CORRECTION UNDER RULE 108, IN RELATION TO
RA 9048
Q: Who may file a petition for cancellation or
correction of entries? Q: What are the entries subject to cancellation or
correction under Rule 108?
A: Any person interested in any act, event, order or
decree concerning the civil status of persons which A:
has been recorded in the civil register, may file a 1. Births;
verified petition for the cancellation or correction 2. Marriages;
of any entry relating thereto, with the RTC of the 3. Deaths;
province where the corresponding civil registry is 4. Legal separations;
located (Sec. 1). 5. Judgments of annulments of marriage;
6. Judgments declaring marriages void from
Q: What is the nature of proceedings in Rule 108? the beginning;
7. Legitimations;
A: It is summary if the entries in the civil register 8. Adoptions;
sought to be corrected are clerical or innocuous in 9. Acknowledgments of natural children;
nature. However, where such entries sought to be 10. Naturalization;
corrected or changed are substantial, the 11. Election, loss or recovery of citizenship;
proceedings are adversarial in nature. (Republic v. 12. Civil interdiction;
Valencia, G.R. No. L-32181, Mar. 5, 1986) 13. Judicial determination of filiation; and
14. Change of name. (Sec. 2)
Q: What is meant by appropriate adversarial
proceeding? Q: May the trial court issued an order declaring
the nullity of marriage under Rule 108 and change
A: One which has opposing parties; contested as the status from married to single?
distinguished from an ex parte application, one of
which the party seeking relief has given legal A: No, it is proper only in ordinary adversarial
warning to the other party, and afforded the latter proceedings. (Lim v. Republic, G.R. No. 8932, May
an opportunity to contest it. (Republic v. Valencia, 31, 1957)
Ibid.)

Q: Within what period may a petition for Kho, G.R. No. 170340, June 29, 2007; Alba v. CA,
correction or cancellation of entries be filed? G.R. No. 164041, July 29, 2005; Barco v. CA, G.R. No.
120587, Jan. 20, 2004). (2007 Bar Question)
A: The law did not fix a period within which the
petition for correction under Rule 108 in relation to Q: Helen is the daughter of Eliza, a Filipina, and
Art. 412 of Civil Code may be filed. Accordingly, Tony, a Chinese, who is married to another
such petition may be filed within 5 years from time woman living in China. Her birth certificate
the petitioner discovered the error or mistake in indicates that Helen is the legitimate child of Tony
the civil registry, and not from the date the birth and Eliza and that she is a Chinese citizen. Helen
certificate was registered in the civil registry. (Lee v. wants her birth certificate corrected by changing
CA, supra.) her filiation from "legitimate" to "illegitimate" and
Q: Celine files a petition for cancellation of the because her parents were not married. What
birth certificate of her daughter Jeanie on the petition should Helen file and what procedural
ground of falsified material entries therein made requirements must be observed? Explain.
the case for hearing and directs the publication of A: A petition has to be filed in a proceeding under
the order once a week for 3 consecutive weeks in a Rule 108 of the Rules of Court. A petition to change
newspaper of general circulation. Summons was the record of birth by changing the filiation from
served on the Civil Registrar but there was no
appearance during the hearing. The RTC granted
the petition. Jeanie filed a petition for annulment involve a simple summary correction which could
of judgment before the CA, saying that she was otherwise be done under the authority of R.A.
not notified of the petition and hence, the decision 9048. Procedural requirements include: (a) filing a
was issued in violation of due process. Celine verified petition; (b) naming as parties all persons
opposed saying that the publication of the court who have or claim any interest which would be
order was sufficient compliance with due process. affected; (c) issuance of an order fixing the time and
Rule. place of hearing; (d) giving reasonable notice to the
parties named in the petition; and (e) publication of
A: The petition for annulment of judgment before the order once a week for 3 consecutive weeks in a
the CA should be granted. Jurisdiction of the court newspaper of general circulation. (2005 Bar
over a petition for cancellation of a birth certificate Question)
requires reasonable notice to all interested parties
and also publication of the order once a week for 3 S. APPEALS IN SPECIAL PROCEEDINGS
consecutive weeks in a newspaper of general
circulation. In this case, publication of the order is 1. JUDGMENTS AND ORDERS FOR WHICH APPEAL
insufficient because Jeanie, a directly concerned MAY BE TAKEN
party, was not given reasonable notice, hence,
denied due process. The lower court, therefore, did Q: What are the orders or judgments from which
not acquire jurisdiction. (Ceruila v. Delantar, G.R. appeal may be taken?
No. 140305, Dec. 9, 2005).
A: An interested person may appeal when such
Alternative Answer: order or judgment:
It should not be granted. The publication of an
order of hearing under Section 4 of Rule 108 cured 1. Allows or disallows a will;
the failure to implead an indispensable party. A 2. Determines who are the lawful heirs of a
petition for correction is an action in rem, an action deceased person, or the distributive share
against a thing and not against a person. The of the estate to which such person is
decision on the petition binds not only the parties entitled;
thereto but the whole world. An in rem proceeding 3. Allows or disallows, in whole or in part,
is validated essentially through publication. any claim against the estate of a deceased
Publication is notice to the whole world that the person, or any claim presented on behalf
proceeding has for its object to bar indefinitely all of the estate in offset to a claim against it;
who might be minded to make an objection of any 4. Settles the account of an executor,
sort against the right sought to be established. It is administrator, trustee or guardian;
the publication of such notice that brings in the 5. Constitutes, in the proceedings relating to
whole as a party in the case and vests the court the settlement of the estate of a
with jurisdiction to hear and decide it (Republic v. deceased person, or the administration of

SPECIAL PROCEEDINGS
a trustee or guardian, a final A:

determination in the lower court of the 1. Rule 40 (Appeal from MTC to RTC) By
rights of the party appealing, except that filing a notice of appeal, record on appeal
no appeal shall be allowed from the and payment of appeal fees on questions
appointment of a special administrator; of law or fact or both;
6. Is the final order or judgment rendered in
the case, and affects the substantial rights 2. Rule 41 (Appeal from the RTC to CA in
of the person appealing, except orders exercise of its original jurisdiction) By
granting or denying a motion for new trial ordinary appeal by filing a notice of
or for reconsideration (Sec. 1, Rule 109). appeal, record on appeal and payment of
appeal fees on questions of law or fact or
Note: A stranger having neither material nor direct both;
interest in a testate or intestate estate has no
right to appeal from any order issued therein. 3. Rule 42 (Petition for review from the RTC
(Panis v. Yangco, G.R. No. L-29460, Dec. 22, 1928) to the CA in exercise of its appellate
jurisdiction) By filing a notice of appeal,
2. WHEN TO APPEAL record on appeal and payment of appeal
fees on questions of law or fact or both;
Q: When should the appeal in special proceedings
be filed? 4. Rule 45 (Appeal by certiorari to the SC)
By filing of verified petition for review on
A: certiorari and payment of fees which shall
PERIOD FOR APPEAL raise questions of law only
30 days (Record on Appeal XPN: Any party may raise questions
Special Proceedings
required) of fact in their appeal in cases of writ
48 hours from service of of amparo, habeas data and
Habeas Corpus
judgment kalikasan.
5 working days from date of
Writ of Amparo
notice of judgment
5. Rule 65 (Petition for certiorari) By filing
5 working days from date of
Writ of Habeas Data of verified petition for certiorari on the
notice of judgment
ground that the court acted without or in
15 days from notice of
excess of jurisdiction or with grave abuse
Writ of Kalikasan judgment or denial of motion
for reconsideration
of discretion.
4. RULE ON ADVANCE DISTRIBUTION

Q: What are the orders that are not
appealable?
Q: When can an advance distribution be made
despite a pending controversy in the settlement of
A:
an estate?
1. Order directing the administrator to
take action to recover an amount due
A: Notwithstanding a pending controversy or
to the estate.
2. Order made in administration appeal in proceedings to settle the estate of a
proceedings relating to the inclusion decedent, the court may, in its discretion and upon
or exclusion of items of property in such terms as it may deem proper and just, permit
the inventory of executor or that such part of the estate as may not be affected
administrator. by the controversy or appeal be distributed among
3. Order appointing a special
the heirs or legatees, upon compliance with the
administrator.
4. Order granting or denying a motion conditions set forth in Rule 90 of these rules. (Sec.
for new trial or for reconsideration. 2)
3. MODES OF APPEAL
Q: What are the modes of appeal, how perfected

and their grounds?


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SPECIAL PROCEDINGS

IV. SPECIAL PROCEEDINGS A: It is a remedy by which a party seeks to establish

NOTE: It is a proceeding in rem.

Q: What are the subject matters of special proceedings?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

RTC-Gross value of the estate Where the will was allowed or

164 REMEDIAL LAW TEAM:

A.M. No. Habeas Corpus in

Q: What is the publication requirement in special proceedings?

Q: Who should be notified in special proceedings?

A. SETTLEMENT OF ESTATE OF DECEASED Q: State the rule on venue in judicial settlement of

1. WHICH COURT HAS JURISDICTION A:

166 REMEDIAL LAW TEAM:

A: A: Yes. In probate proceedings, if a property

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

168 REMEDIAL LAW TEAM:

B. SUMMARY SETTLEMENT OF ESTATES

1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

B. SUMMARY SETTLEMENT OF ESTATE OF

Note: The amount of bond required under Section 2 is

170 REMEDIAL LAW TEAM:

of satisfying such lawful participation. (Sec. 4, Rule 3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE

Q: Why is publication of the extrajudicial Q: What is an Affidavit of Self-Adjudication by sole

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE

Also applicable in judicial proceedings.

172 REMEDIAL LAW TEAM:

C. PRODUCTION AND PROBATE OF WILL anxiety; as in the case of absolute

D. ALLOWANCE OR DISALLOWANCE OF A WILL At least one The will shall be

A: Q: What matters shall be testified on by the other

The court may A:

174 REMEDIAL LAW TEAM:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

Q: What are the effects of probate? 2. Non-resident of the Philippines; and

Q: Who can administer the estate? 2. ORDER OF PREFERENCE

A: Q: State the order of preference in granting letters

176 REMEDIAL LAW TEAM:

Q: What are the general powers of an 6. He cannot profit by the increase or

178 REMEDIAL LAW TEAM:

the appointment of a special administrator. administrator is appointed with those

Q: What are the powers and duties of a special A:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

F. CLAIMS AGAINST THE ESTATE Q: What is the statute of non-claims?

Q: What is a claim? A: It is a period fixed by the courts for the filing of

Q: When should claims be filed?

A: It is a conditional claim, which is subject to the Note: Where an executor or administrator

180 REMEDIAL LAW TEAM:

Q: What is the procedure in filing claims?

182 REMEDIAL LAW TEAM:

4. PAYMENT OF DEBTS 5. The decedent was, in his lifetime, under

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

1. ACTIONS THAT MAY BE BROUGHT AGAINST A:

184 REMEDIAL LAW TEAM:

2. In his lifetime, the deceased had made or

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

186 REMEDIAL LAW TEAM:

1. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR

EXECUTOR/ ADMINISTRATOR TRUSTEE

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

Q: What is a trust? 3. REQUISITES FOR THE REMOVAL AND

2. CONDITIONS OF THE BOND 4. GROUNDS FOR REMOVAL AND RESIGNATION OF

2. That he will manage and dispose of all 5. EXTENT OF AUTHORITY OF TRUSTEE

188 REMEDIAL LAW TEAM: