SPECIAL PROCEEDINGS 13.

Rule 104 Voluntary Dissolution of

Corporations
(Deemed repealed by the
1. Distinction between civil action and special proceedings Corporation Code,
Title XIV, Secs. 117-122)
a. Civil action – action by which a party sues another for enforcement or 14. Rule 105 Judicial Approval of Voluntary
protection of a right, or prevention or redress of a wrong. Recognition of Minor
b. Special proceeding – remedy by which a party seeks to establish a status, Natural Children
right or a particular fact. 15. Rule 106 Constitution of Family Home
(Deemed repealed by the
2. Nature of special proceedings – initially non-adversarial in nature; in the Family Code, Arts. 252-253)
course of proceedings, there may be oppositors. 16. Rule 107 Absentees
17. Rule 108 Cancellation or Correction of
3. Rationale for special rules – In special proceedings the State is interested, Entries
and proceedings are in rem. Special rules are required for expediency’s sake 18. Rule 109 Appeals in Special Proceedings
and because these proceedings are usually not adversarial in the traditional
sense of two contending private parties.
• Special Proceedings Under Various Laws

GENERAL PROVISION 1. Summary proceedings under the Family Code

2. Actions mentioned in the Family Courts Act of 1997 (RA 8369)
Rule 72 - declaration of absolute nullity of void marriages and annulment of
SUBJECT MATTER AND APPLICABILITY voidable marriages
OF GENERAL RULES - legal separation
- provisional orders on support, custody of minor children and
Sec. 1. Subject matter of special proceedings. administration of common property
- violence against women and their children and protection orders
1. Rules 73-75 ) 3. Proceedings under: Child & Youth Welfare Code (PD 1083)
2. Rules 76-81 ) Settlement of Estate of Child Abuse Act (RA 7610)
Child Employment Act (RA 7658)
3. Rules 82-86 ) Deceased Persons - declaration of status as abandoned, dependent or neglected
4. Rules 87-90 ) children
5. Rule 91 Escheat - voluntary or involuntary commitment of children
6. A.M. No. 03-02-05-SC Guardianship of Minors
- suspension, termination or restoration of parental authority
7. Rules 92-97 Guardianship of Incompetents
8. Rule 98 Trustees
4. Domestic and Inter-country adoption
9. A.M. No. 02-06-02-SC Adoption and Custody of Minor
5. Petition for corporate rehabilitation
10. Rule 101 Hospitalization of Insane Persons
6. Petition for writ of amparo
11. Rule 102 Habeas Corpus
7. Petition for writ of habeas data
12. Rule 103 Change of Name
8. Arbitration
 2
• Rules in civil actions applicable to special proceedings
Sec. 2. Applicability of rules of civil actions.
In the absence of special rules, the rules provided for in ordinary
actions shall be, as far as practicable, applicable to special proceedings.
1. Rule 17 governing dismissal of actions by plaintiff in civil actions
(Ventura vs. Ventura, Sept. 24, 1969)
2. Rules regarding:
- preparation, filing and service of applications, motions, and other
papers
- omnibus motions
- subpoena
- computation of time
- motion for new trial
- discovery
- trial before commissioners
- procedure of appeal (Fernandez vs. Maravilla, 10 SCRA 589
[1964])
3. Rule 33 regarding judgment on demurrer to evidence
(Matute vs. CA, 26 SCRA 768 [1969])
• Recent jurisprudence
In the absence of special provisions, rules in ordinary actions may be applied in
special proceedings as much as possible and where doing so would not pose an
obstacle to said proceedings. Nowhere in the Rules of Court does it categorically say
that rules in ordinary actions are inapplicable or merely suppletory to special
proceedings. Provisions of the Rules of Court requiring a certification of non-forum
shopping for complaints and initiatory pleadings, a written explanation for non-
personal service and filing, and the payment of filing fees for money claims against
an estate would not in any way obstruct probate proceedings, thus, they are
applicable to special proceedings such as the settlement of the estate of a deceased
person.
(Sheker versus Estate of Alice Sheker, G.R. No. 157912 Dec 13, 2007)
SETTLEMENT OF ESTATE OF DECEASED PERSONS
• Art. 777, Civil Code – rights to succession are transmitted from the moment
of death of the decedent.
This is only from the substantive aspect. From the PROCEDURAL aspect,
there are certain procedures that must be observed before actual transmission of the
property, but rights of the heirs retroact from the moment of death.
• Recent jurisprudence
The right of respondent’s predecessors over the subject property is more than
sufficient to uphold respondent’s right to possession over the same. Respondent’s
right to the property was vested in her along with her siblings from the moment of
their father’s death. As heir, respondent had the right to the possession of the
property, which is one of the attributes of ownership. Such rights are enforced and
protected from encroachments made or attempted before the judicial declaration
since respondent acquired hereditary rights even before judicial declaration in testate
or intestate proceedings.(Bunyi versus Factor. G.R. No. 172547, June 30, 2009)
• Settlement of estate
The determination of which court exercises jurisdiction over matters of
probate depends upon the GROSS VALUE of the estate of the decedent. Rule 73,
Sec. 1 is deemed amended by BP 129, as amended by RA 7691 (Lim vs. CA, G.R.
No. 124715, January 24, 2000, 323 SCRA 102]),
• Kinds of settlement based on the FORM of settlement:
1. Extrajudicial settlement (Rule 74, Sec. 1)
2. Summary settlement of estates of small value (Rule 74, Sec. 2)
3. Judicial settlement through letters testamentary or letters of administration with
or without the will annexed (Rules 73, 75-90)
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Rule 73
VENUE AND PROCESS
Sec. 1. Where estate of deceased persons settled.
1. If residing in Philippines at time of death, whether citizen or not, court of
PLACE OF RESIDENCE.
2. If residing in a foreign country – court of ANY PLACE WHERE HE HAD
ESTATE.
3. Court first taking cognizance of settlement of estate of a decedent shall
exercise jurisdiction TO THE EXCLUSION of all other courts.
- subject to preferential jurisdiction of court where TESTATE proceedings
are filed.
4. Jurisdiction assumed by a court depending on
- place of residence of decedent, or
- location of estate
shall NOT BE CONTESTED in a suit or proceeding,
• except in an appeal from that court, or
• when want of jurisdiction appears in the record
• NOTES:
1. Term “resides” refers to “actual or physical” residence, as distinguished from
“legal residence” or “domicile.”
There is a distinction between “residence” for purposes of election laws
and “residence” for purposes of fixing the venue of actions. In election
cases, “residence” and “domicile” are treated as synonymous terms, that is,
the fixed permanent residence to which when absent, one has the intention
of returning. However, for purposes of fixing venue under the Rules of Court,
the “residence” of a person is his personal, actual or physical habitation, or
actual residence or place of abode, which may not necessarily be his legal
residence or domicile provided he resides therein with continuity and
consistency. Hence, it is possible that a person may have his residence in
one place and domicile in another. (San Luis vs. San Luis, G.R. No. 133743,
February 6, 2007)
2. Sec. 1, Rule 73 prescribing court where decedent’s estate shall be settled –
(a) place of residence or (b) where his estate is located, relates to VENUE
and not jurisdiction.
3. The place of residence of the deceased is a matter of venue only
and not one of jurisdiction over the subject matter. (In re Kao Singco,
74 Phil. 239 [1943])
4. Where two proceedings filed, one intestate, the other testate – illustrative
cases on which courts should have “jurisdiction”:
n ROBERTS VS. LEONIDAS (129 SCRA 33 [YEAR]) – intestate in CFI
Manila Branch 20, testate (reprobate) in CFI Manila, Branch 38. Ruling:
priority to second branch of same court (CFI Manila). a. Probate of will
MANDATORY- anomalous that estate of person who died testate should
be settled in intestate proceedings. b. Intestate case should be
CONSOLIDATED with testate proceeding - Judge assigned to testate
proceeding should continue hearing the two cases.
n URIARTE VS. CFI OF NEGROS OCC. (33 SCRA 252 [YEAR]) –
intestate in Negros court, testate in Manila court. Ruling: priority to first
court. Petitioner in Manila court should have submitted will for probate to
Negros court, either in separate special proceeding or motion. Testate
proceeding takes precedence over intestate proceeding. If in the course
of intestate proceeding, it is found that decedent left a will, proceeding for
probate of will should REPLACE intestate proceeding.
n CUENCO VS. CA (53 SCRA 360 [1973]) – intestate in Cebu court,
testate in QC court. Ruling: priority to second court. First court, upon
learning that petition for probate has been presented in another court,
may DECLINE TO TAKE COGNIZANCE of and HOLD IN ABEYANCE
petition before it, and instead DEFER to second court. If the will is
admitted to probate, it will definitely DECLINE to take cognizance.
 4
Explain difference between Uriarte and Cuenco rulings – In Uriarte, there
was showing that petitioner in probate proceeding knew before filing of petition in
Manila that there was already intestate proceeding in Negros.
885; Pereira vs. CA, 174 SCRA 154 .
An allegation that earnest efforts towards a compromise have been made is
not required in a petition for the settlement of estate. Art. 222 of the Civil Code, which
speaks of a "suit" between members of the same family, is applicable only to ordinary
civil actions. This is clear from the term "suit" that it refers to an action by one person
or persons against another or others in a court of justice in which the plaintiff pursues
the remedy which the law affords him for the redress of an injury or the enforcement of a
right. Movants are not being sued for any cause of action as in fact no defendant was
impleaded. The petition is a special proceeding and, as such, it is a remedy whereby
the petitioners seek to establish a status, a right, or a particular fact. (Vda. de Manalo
v. CA, 349 SCRA 135 [2001])
Sec. 2. Where estate settled upon dissolution of marriage
A creditor cannot sue surviving spouse of a decedent in an ordinary
proceeding for collection of sum of money chargeable against the conjugal property.
Proper remedy – file a claim in the settlement of estate of the decedent. Reason:
upon death of one spouse, powers of administration of surviving spouse ceases and
is passed to administrator appointed by probate court in the settlement proceedings.
(Alipio vs. CA, 341 SCRA 441 [2000])
• Probate court is of limited jurisdiction
1. Probate court cannot adjudicate or determine title to properties claimed to be
a part of the estate and equally claimed as belonging to outside parties.
2. It can only determine whether or not they should be included in the inventory
or list of properties to be administered by the administrator.
3. Probate court can only pass upon questions of title provisionally for the
purpose of determining whether a certain property should or should not be
included in the inventory.
4. Parties have to resort to an ordinary action for final determination of
conflicting claims of title.
CASES: Vda. de Rodriguez vs. CA, 91 SCRA 540; Pastor vs. CA, 122 SCRA
• Separate civil action for quieting of title - where issue or ownership of
properties excluded from the inventory is finally determined (Pobre vs.
Gonong, 148 SCRA 553 [1987]).
EXCEPTION:
Where interested parties are all heirs and rights of third parties are not
impaired, probate court can decide question of ownership (Coca vs.
Pangilinan, 81 SCRA 278 [1987]).
With consent of all the parties, without prejudice to third persons (Trinidad vs.
CA, 202 SCRA 106 [1991]).
• However, probate court has jurisdiction to (a) determine heirs – separate
action for declaration of heirs not proper (Solivio vs. CA, 182 SCRA 119
[1990]) and (b) distribute estate.
• The making of the inventory is of a preliminary and provisional preliminary
and provisional nature and is not absolutely decisive of the rights of
persons in interest. (Guinguing V. Abuton, 48 Phil. 144 [1925])
• Disputes between heirs in respect to the obligation to collate may be
determined in the course of administration proceedings. (Guinguing V.
Abuton, 48 Phil. 144 [1925])
RULE 74
SUMMARY SETTLEMENT OF ESTATES
 5
Distinction between extrajudicial settlement (ES) and summary settlement of
estates of small value (SS):
1. ES-no court intervention
SS-judicial adjudication although summary
2. ES-value of estate immaterial
SS-applies only where gross value not more than P10,000.00
3. ES-allowed only in intestate succession
SS-both testate and intestate
4. ES-no outstanding debts of estate at time of settlement
SS-even if there are debts
Sec. 1. Extrajudicial settlement by agreement between the heirs
• REQUISITES OF EXTRAJUDICIAL SETTLEMENT
1. Decedent dies intestate
2. No outstanding debts at time of settlement*
3. Heirs all of legal age or minors represented by judicial guardians or legal
representatives
4. Settlement made in public instrument duly filed with RD
5. Publication in newspaper of general circulation in the province once a
week for 3 consecutive weeks
6. Bond equivalent to value of personal property posted with RD**
* Presumed that decedent left no debts if no creditor filed petition for letters of
administration within 2 years after death of decedent.
** Bond required only when personal property is involved in the extrajudicial
settlement. Real estate is subject to lien in favor of creditors, heirs or other persons
for 2 years from distribution of estate, notwithstanding any transfers of real estate that
may have been made (Sec. 4, Rule 74).
*** A court may approve an extrajudicial partition among the co-heirs of a deceased
who died intestate and without debts, without the court first requiring the partitioning
heirs to put up any bond when only realty is partitioned and no personality is
distributed. (Rule 74, Secs. 1 and 3)
• RATIONALE for Sec. 1, Rule 74 – when person dies without having
obligations to be paid, his heirs are not bound to submit property for judicial
administration, which is always long and costly (Utulo vs. Pasion, 66 Phil.
302).
When after the administrator duly filed a report and inventory of the
estate, together with a statement of debts and liabilities and all heirs agreed to
partition the estate and to assume payment of all the estate debts and liabilities,
the probate court properly approved the partition after all debts of the estate has
been paid. Thus, a claim of a creditor is time-barred when he filed a petition for
probate 5 years after approval of the extrajudicial partition. An extrajudicial
partition is not voided by the existence at the time of an unpaid estate debt.
(McMicking v. Sy Combieng, 21 Phil. 211 [1912])
• IF HEIRS DISAGREE – ordinary action for partition.
Where the deceased died intestate and left no debts, The heirs, instead of
applying for extrajudicial settlement, can opt for judicial partition under Rule 69.
Unless necessary because they cannot agree as to the composition of the estate,
administration proceedings cannot be resorted to. (Pereira v. CA, 174 SCRA 154
[1989]; Javier v. Magtibay, 96 Phil. 383 [1954]; Utulo v. Pasion, 66 Phil. 302 [1938])
• IF ONLY ONE HEIR – affidavit of self-adjudication.
Adjudication by an heir of the decedent’s entire estate to himself by means of
an affidavit is allowed only if he is the sole heir to the estate (Delgado vda. de De la
Rosa vs. Heirs of Marciana Rustia vda. de Damian, 480 SCRA 334 [2006]).
• Summary settlement – affidavit of self-adjudication
 6
Respondent, believing rightly or wrongly that she was the sole heir to
Portugal’s estate, executed on February 15, 1988 the questioned Affidavit of
Adjudication under the second sentence of Rule 74, Section 1 of the Revised Rules
of Court. Said rule is an exception to the general rule that when a person dies
leaving a property, it should be judicially administered and the competent court
should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in
case the deceased left no will, or in case he did, he failed to name an executor
therein. (Portugal vs. Portugal-Beltran, G.R.No. 155555, August 16, 2005)
Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could
not have validly adjudicated Josefa’s estate all to himself. Rule 74, Section 1 of the
Rules of Court is clear. Adjudication by an heir of the decedent’s entire estate to
himself by means of an affidavit is allowed only if he is the sole heir to the estate. (In
the Matter of the Intestate Estate of Delgado, G.R. No. 155733, January 27, 2006)
• FILING OF EXTRAJUDICIAL SETTLEMENT WITH REGISTER OF DEEDS
REQUIRED – whether by public instrument, affidavit, stipulation in pending
action for partition.
• DESPITE ITS PUBLICATION, extrajudicial settlement NOT BINDING on any
person who has not participated therein or who had no notice thereof (Sec. 1,
last par., Rule 74; Sampilo vs. CA, 101 Phil. 71 [1958]).
• Extrajudicial settlement – on whom binding
The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding.
The rule plainly states, however, that persons who do not participate or
had no notice of an extrajudicial settlement will not be bound thereby.
The publication of the settlement does not constitute constructive notice to
the heirs who had no knowledge or did not take part in it because the same
was notice after the fact of execution. (Cua vs. Vargas, G.R. No. 156536,
October 31, 2006)
The publication of the settlement does not constitute constructive
notice to the heirs who had no knowledge or did not take part in it
because the same was notice after the fact of execution. The
requirement of publication is geared for the protection of creditors and was
never intended to deprive heirs of their lawful participation in the decedent’s
estate. (Spouses Tiro vs. Heirs of Cuyos, G.R. No. 161220, July 30, 2008)
• Action to annul deed of extrajudicial settlement – Sec. 4, Rule 74 provides a
two year prescriptive period (1) to persons who participated or taken part or
had notice of the extrajudicial partition, and (2) when the provisions of Sec.
1 of Rule 74 have been strictly complied with – that all persons or heirs of
the decedent have taken part in the extrajudicial settlement or are
represented by themselves or through guardians (Pedrosa vs. CA, 353
SCRA 620 [2001]).
• Prescriptive period for non-participants – 10 years, because an action for
reconveyance based on implied or constructive trust, being an obligation
created by law, prescribes in 10 years (Art. 1144, par. 2, Civil Code)
The period starts from issuance of title over the property (Marquez vs. CA, 300
SCRA 653 [1998]). Constructive trusts under Art. 1456 are established to prevent
unjust enrichment. In Marquez, husband executed affidavit of self-adjudication
without including the children
The ruling in Gerona vs. De Guzman, 11 SCRA 153 (1964), cited in Pedrosa vs.
CA,, that prescriptive period for non-participants is 4 years from discovery of fraud,
i.e., when deed was filed with RD and new title issued, is not applicable, because the
same was based on the old Code of Civil Procedure (Sec. 43, which governed
prescription). The Gerona doctrine was abandoned in Amerol vs. Bagumbaran, 154
SCRA 396 (1987) and reiterated in Caro vs. CA, 180 SCRA 401 (1989) and
Marquez.
• Exception to prescription of actions – when plaintiff, the legal owner, and
not the defendant registered owner, is in possession of the land to be
reconveyed. Said action, when based on fraud, is imprescriptible as long as
the land has not passed to an innocent purchaser for value (Heirs of
Saludares vs. CA, 420 SCRA 54).
• Lack of registration of extrajudicial settlement does not affect its validity when
there are no creditors or rights of creditors are not involved (Vda. de Reyes
vs. CA, 199 SCRA 646 (1991).
 7
• An extrajudicial partition among a deceased intestate's heirs is not voided
upon discovery of the existence an unpaid estate debt. The unpaid creditor's
remedy is to ask for administration within the two-year period. (McMicking v.
Sy Conbieng, 21 Phil. [1912])
• As a general rule, an action for partition among co-heirs does not prescribe,
but this is true only as long as the other co-heirs do not hold the property
adversely. Where the partitioning heirs secured new TCTs in their own name,
they may be considered as holding the property adversely to the omitted heir.
Thus, the omitted heir’s action to annul partition is subject to the rules on
prescription. An action for reconveyance of real property based upon a
constructive and implied trust, resulting from fraud, may be barred by the
statute of limitations — which is four years from the discovery of the fraud.
Such discovery took place here in 1978 when the deed of extrajudicial
partition was registered and new TCTs issued, this registration being
constructive notice to the whole world. (Gerona v. de Guzman; 11 SCRA
153 [1984])
RULE 75
PRODUCTION OF WILL.
ALLOWANCE OF WILL NECESSARY
1. Allowance of will is conclusive as to its due execution.
• Art. 783, Civil Code defines a will as: an act whereby a person is
permitted with the formalities prescribed by law to control to a certain
degree the disposition of his estate to take effect after his death.
Petitioner should realize that the allowance of her husband’s will is
conclusive only as to its due execution. The authority of the probate court is
limited to ascertaining whether the testator, being of sound mind, freely
executed the will in accordance with the formalities prescribed by law. Thus,
petitioner’s claim of title to the properties forming part of her husband’s estate
should be settled in an ordinary action before the regular courts. (Nittscher vs.
Nittscher, G.R. No. 160530, November 20, 2007)
2. Probate of will (special proceeding to establish the validity of a will) is
MANDATORY.
a. The law enjoins probate of the will and public policy requires it. Unless
will is probated and notice given to the whole world, right of a person to
dispose of his property by will may be rendered nugatory (Maninang vs.
CA, 114 SCRA 478 [1982]).
*The requirement of probate is not for the benefit of heirs but to
effectuate the public policy that the testator’s devolutionary wishes be
respected. Presentation of a will for probate is more of a duty than a
right. (Guevarra v. Guevarra, 98 Phil. 249 [1956])
The Deed of Donation which is one of mortis causa, not having followed the
formalities of a will, is void and transmitted no right to petitioners’ mother. But
even assuming that the formalities were observed, since it was not probated, no
right to Lot Nos. 674 and 676 was transmitted to Maria. (Aluad vs. Aluad, G.R.
No. 176943, October 17, 2008
b. In intestate succession, no valid partition among heirs until after will has
been probated (Ralla vs. Judge Untalan, 172 SCRA 858 [1989]).
c. Presentation of will cannot be dispensed with on the ground of
ESTOPPEL because public policy requires that a will should be probated
(Fernandez vs. Dimaguiba, 21 SCRA 428 [1967]).
• PROBATE COURT DOES NOT LOOK INTO INTRINSIC VALIDITY
GENERAL RULE: Probate court’s authority is limited only to extrinsic
validity of the will, i.e.:
a. due execution – voluntariness
b. testator’s testamentary capacity – sound mind
 8
c. compliance with formal requisites or solemnities
1. Intrinsic validity of the will normally comes after court declares that will has
been duly authenticated.
2. Court at this stage of the proceedings is not called upon to rule on intrinsic
validity or legality of the provisions of the will (Nuguid vs. Nuguid, 17 SCRA
449 [1966]; Maninang vs. CA, supra).
3. Even after two years after testator's will was admitted to probate, a court, upon
motion by his compulsory heirs and after hearing, can order that the will is
intrinsically void. An Order admitting to probate is conclusive only as regards the
extrinsic validity of the will (See Quintana v. Angas, 91 O.G. 1081 [CA; 1992]).
EXCEPTIONS:
1. In exceptional instances, courts not powerless to pass upon certain provisions
of will which it may declare invalid even as it upholds extrinsic validity of will
(Ajero vs. Ca, 236 SCRA 488 [1994]).
2. Probate court may only disregard passing on extrinsic validity of will where
intrinsic validity apparent on face of will (Maninang vs. CA, supra)
3. Probate of will might become idle ceremony if on its face it appears intrinsically
void.
4. In Nuguid, court ruled that will was intrinsically invalid as it completely
preterited parents of the testator.
a. Preterition – annuls institution of heirs
b. Disinheritance – annuls institution of heirs as to portion of estate which
disinherited heirs have been illegally deprived
5. The general rule is that the probate of a will deals solely with the extrinsic
validity of the will. The exception is -- where practical considerations demand
that the intrinsic validity of the will be passed upon, even before it is
probated, the court should meet that issue. This is because the probate of a
will might become an idle ceremony if on its face it appears to be intrinsically
void.
In the Nuguid case (where the intrinsic validity of the will was passed
upon even before probate) it was ruled that the will was intrinsically invalid as
it completely preterited the parents of the testator. However, when the issue
is whether under the terms of the will an heir had been preterited or
disinherited, and whether it was a valid disinheritance. (In pretention the
annulment of the will is generally total, whereas in disinheritance the nullity is
limited to the portion of the estate of which the disinherited had been illegally
deprived.) The issue should be remanded to the trial court for the
determination of the issue of whether said heir was preterited or disinherited,
since this is not indubitable from the face of the will. (Maninang v. CA, 114
SCRA 478 [1982])
• Q: T, the testator, died, leaving two sets of children by two different
wives, the first was D who died twenty years ahead and by whom he had ten
children and the second was E by whom he had two children. The
administrator of his estate submitted an inventory wherein he included only
T's lands devised to the children of the second marriage, omitting other lands
possessed by him at the time of his death and which were claimed by the
children of the first marriage as having been derived from their mother. E, in
her own behalf and that of her two minor children, filed a motion in the
probate court asking that the administrator be required to amend his
inventory to include therein all properties pertaining to the conjugal
partnership of T and D, so as to force the children of the first marriage to
bring into collation the properties that have been received by them. After
hearing, the probate court found that no property had been acquired by T
during his second marriage and that it is only his share therein which is the
subject of the present administration proceedings. From this order the
oppositor children of the first marriage appealed. How should the appeal be
resolved?
Ans.: The order should be affirmed. In the first place, the order is not
such a final order which is appealable since the making of the inventory is of
a preliminary and provisional nature and is not absolutely decisive of the
 9

rights of persons in interest. In any event, the probate court could well issue
the order because all the heirs are represented in the administration and the
contested claim of ownership is merely between some of the heirs and the
administrator. Disputes between heirs in respect to the obligation to collate
may be determined in the course of administration proceedings. (Guinguing
V. Abuton, 48 Phil. 144 [1925])
Q: In the above problem, what if X instituted probate proceedings in
Quezon City while Y institutes in Bulacan and both heirs moved to dismiss
the petition of the other, how should the Bulacan and Quezon City courts
decide?
Ans.: The Bulacan court should grant X’s motion to dismiss and the
Quezon City court deny its motion to dismiss because Quezon City is the
court of proper venue. (Garcia Fule v. CA, 74 SCRA 1989 [1976])

RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL • WHAT – petition to have will allowed whether:

Sec. 1. Who may petition for allowance of will. a. will in possession of petitioner or not
b. will lost
• WHO c. will destroyed

1. Executor
2. Legatee – need not be a relative of decedent
3. Devisee – need not be a relative of decedent JURISDICTION HOW ACQUIRED
4. Other interested person - heir; creditor
5. Testator – during his lifetime a. Attaching of mere copy of will sufficient – annexing of original of will to the
petition is not jurisdictional requirement.
• WHEN – at any time after death of testator – not subject to bar by statute
of limitations and does not prescribe, since it is required by public policy. b. Delivery of will sufficient even if no petition filed – under Sec. 3, Rule 76, “when
a will is delivered to the court,” court could motu proprio take steps to fix time
• WHERE – court having jurisdiction and place for proving the will, issue corresponding notices.

c. If the will is delivered to the clerk of court before the actual filing of the petition
Q: T died in Quezon City, his place of residence, leaving a will. May the for probate, the petition is deemed to relate back to the time the will is
RTC-Bulacan take cognizance of the petition for the probate of his will even if delivered. (Rodriguez v. Borja, 17 SCRA 418 [1966])
he left no property in Bulacan?

Ans.: Yes, deceased’s residence or location of his estate is not an
element of jurisdiction of the probate court but is merely one of venue. So,
RTC-Bulacan may take cognizance of the petition for probate if there is no
objection to the venue.
Sec. 2. Contents of petition.
THE LAW IS SILENT AS TO SPECIFIC MANNER OF BRINGING THE
JURISDICTIONAL ALLEGATIONS BEFORE THE COURT - but they should be made
in the form of an application and filed with the original of the will attached thereto.
 10
Jurisdictional facts referred to in Sec. 2(a):
1. Death of decedent
2. His residence at time of his death in the place within the jurisdiction of
the court, or if he is a non-resident, his leaving an estate in such place.
Sec. 3. Court to appoint time for proving the will. Notice thereof to be
published.
Notice and Hearing; Publication
1. After will delivered to, or petition for allowance of will filed in court having
jurisdiction, court –
a. shall fix time and place for proving will – when all concerned may appear
to contest allowance thereof.
b. cause notice of such time and place to be PUBLISHED 3 weeks
successively in newspaper of general circulation in the province.
2. NO NEWSPAPER PUBLICATION – where petition for probate filed by
TESTATOR himself.
• Only known heirs, legatees and devisees entitled to personal notice
Notice is required to be personally given to known heirs, legatees, and
devisees of the testator. [Sec. 3, Rule 76, Rules of Court]. A perusal of the will
shows that respondent was instituted as the sole heir of the decedent.
Petitioners, as nephews and nieces of the decedent, are neither compulsory nor
testate heirs who are entitled to be notified of the probate proceedings under the
Rules. Respondent had no legal obligation to mention petitioners in the petition
for probate, or to personally notify them of the same. (Alaban vs. CA, G.R. No.
156021, September 23, 2005).
Probate of Will is In Rem
• Notice by publication as prerequisite to allowance of will is
CONSTRUCTIVE NOTICE to the whole world.
• When probate is granted, the judgment is binding upon everybody, even
against the state.
• After a will is admitted to probate, the son of the deceased though
abroad can no longer file a motion with the court to vacate the order
admitting the will to probate. Such is time-barred because although the
son was residing abroad at the time of probate, the constructive notice
by publication was sufficient to constitute due process of law. Further,
the word “judgment” in Rule 38 includes an order admitting a will to
probate and the word “party” includes any person having an interest in
the subject matter concluded by the order admitting the will to probate.
(In re Estate of Johnson, 39 Phil. 156 [1918])
• At all events, intestate proceedings are subordinate to testate
proceedings because, under Art. 960 of the Civil Code, intestate
succession can be initiated only after final decision as to the nullity of
testate succession. (Rodriguez v. Borja)
Probate JURISDICTIONAL
Without publication of petition, proceedings for settlement of estate is VOID
and should be ANNULLED.
Sec. 4. Heirs, devisees, legatees and executor to be notified by mail or
personally.
1. Notice of time and place of hearing should be addressed to
a. designated or known heirs, legatees and devisees
b. person named as executor (if he is not petitioner)
c. person named as co-executor not petitioning
2. residing in the Philippines
3. at their places of residence, if known
4. Personal service – at least 10 days before hearing
5. Mailed service – at least 20 days before hearing
 11
6. IF TESTATOR asks for allowance of his own will – notice shall be sent
only to his COMPULSORY HEIRS.
• Notice to Designated Heirs, Legatees and Devisees Jurisdictional –
when they are known AND their places of residence are known (De Arranz
vs. Galing, 161 SCRA 628).
• Q: X died on 12 February 1991. The following day, P, the executor
named in his will, delivered this will to the RTC-Quezon City where X was a
resident at the time of his death. On the very same day, the RTC-Quezon
City fixed a time and place for proving the will and caused the publication of
the notice of hearing in a newspaper of general circulation and at the same
time appointed P as special administrator. Evaluate the actions of the court
for correctness.
Ans.: The setting of the time and place for proving the will and
publication of the notice of the hearing thereon was well within the jurisdiction
of the court which was acquired when the will was delivered to it. (Rule 76,
Sec. 3; Rodriguez v. Borja, 17 SCRA 418 [1966]) But the court had not yet
acquired jurisdiction over the parties interested in the estate, there being no
publication yet of the notice of hearing, and so the court could not yet appoint
a special administrator. (De Guzman v. Angeles, 162 SCRA 347 [1980])
SEC. 5. Proof of hearing. What sufficient in absence of contest.
• EVIDENCE INTRODUCED AT PROBATE OF WILL
1. Publication
2. Notice of hearing served on known heirs, legatees, devisees, etc. if places of
residence known
3. Testimony of subscribing witnesses
a. Uncontested -- one witness sufficient
b. Contested -- all subscribing witnesses and
notary (wills executed under Civil Code)
other witnesses (under certain conditions)
Q: The probate of a will was opposed on the ground that it was not
signed by the deceased or by any person in his presence and by his express
direction and that the attestation did not comply with the law. The testator signed the
will by putting a cross over his typewritten name. The proponent produced only one
of the three attesting witnesses. No reason was given why the two other subscribing
witnesses were not presented although they were living within the jurisdiction of the
court. Can the will be admitted to probate?
Ans.: No. In case of contested wills all the subscribing witnesses must be
called or sufficient reasons given why they could not be presented. (Rule 76, Sec. 11;
Cabang V. Delfinado, 34 Phil. 291 [1916])
4. Holographic will
a. Uncontested – at least one witness who knows handwriting and
signature of testator; expert testimony (in the absence of competent
witness)
b. Contested – at least 3 witnesses who know handwriting of testator;
expert testimony (in the absence of competent witness)
5. Holographic will – testator himself as petitioner
a. Contested – contestant has burden of disproving genuineness and due
execution
b. Uncontested – testator must affirm that will and signature are in his own
handwriting
• Substantial Compliance Rule
If will executed in substantial compliance with formalities of law, and
possibility of bad faith obviated – it should be admitted to probate (De Jesus vs. De
Jesus, 134 SCRA 245).
Sec. 6. Proof of lost or destroyed will.
 12

May a photocopy of a will be admitted to probate? Ans: It depends. If the alleged revocation is implied it does not affect the
Ans.: Yes. See Rule 76, Sec. 6. entire will but merely the particular device or legacy, and therefore the issue as to
authenticity and due execution of the will can precede resolution of the issue of
revocation. On the other hand, if the alleged revocation is total and absolute, the
Sec. 9. Grounds for disallowing will. revocation issue must first be resolved because there is nothing to probate if the will
is revoked. (Fernandez v. Dimagiba, 21 SCRA 428 [1967])
1. Legal formalities
a. not executed and attested as required by law An order denying probate is one in rem. If the petitioner was not satisfied with the
order denying the probate, he should have timely appealed therefrom. He cannot file
2. Testamentary capacity a new application for probate of the same will. (Manalo v. Paredes, 147 Phil. 939
b. testator insane or otherwise mentally incapable to make will at time of [1925])
execution

3. Due execution • Separate wills may be probated jointly (Vda. de Perez vs. Tolete, 232
c. executed under duress, or the influence of fear, or threats SCRA 722 [1994]).
d. procured by undue and improper pressure and influence on the part of
the beneficiary, or some other person, for his benefit. • It is possible to set aside a final order admitting a will to probate thru
e. signature of testator procured by fraud or trick and he did not intend that filing a petition for relief under Rule 38. (Riera v. Palmaroli, 40 Phil. 105
the instrument be his will at time of fixing his signature [1919])
f. testator acted by mistake or did not intend that instrument be signed or
should be his will at the time of affixing his signature (Art. 389, Civil
Code)
RULE 77
• Grounds for Disallowance of Will Exclusive ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES
AND ADMINISTRATION OF ESTATE THEREUNDER
Lists in Sec. 9, Rule 76 and Art. 389 are EXCLUSIVE – NO OTHER GROUND
can serve to disallow a will.
Sec. 1. Will proved outside of the Philippines may be allowed here.
Example: If testator fails to sign and date some dispositions in holographic will, it
affects only the validity of the dispositions, but not the whole will. Exc. If • EVIDENCE NECESSARY FOR REPROBATE OF WILL or will probated
unauthenticated alterations, cancellations or insertions are made on the DATE of will outside the Philippines:
of on testator’s SIGNATURE (Ajero vs. CA, supra).
1. due execution of will in accordance with foreign laws
2. testator has domicile in foreign country and not Philippines
Q: Can the probate of a will be opposed on the ground that the will had 3. will has been admitted to probate in such country
been revoked? 4. fact that foreign court is a probate court
5. law of the foreign country on procedure and allowance of wills
(Vda. de Perez vs. Tolete, supra)
 13

An administration granted in New York was the principal or domiciliary
administration, while the administration taken out in the Philippines is ancillary. The
administration extends only to the assets of a decedent found within the state or
country where it was granted, so that the administrator appointed in one state or
country has no power over property in another state or country. (Rule 77, Sec. 4)
Canada is the situs of monies invested in an annuity in Canada under a contract
executed in that country. These monies are outside the jurisdiction and control of the
Manila probate court. The money was not entrusted by the administratrix to the
insurance company, nor did this money come to the company's possession in trust
for the administra¬trix. (Leon and Ghezzi v. Manufacturers Life Ins. Co., 90 Phil. 459
[1951])
Compliance with Secs. 3 and 4 of Rule 76, re publication and notice by mail or
personally to known heirs, legatees and devisees of testator resident in the
Philippines and to executor, if he is not the petitioner, required also in wills for
reprobate (Vda. de Perez vs. Tolete).
RULE 78
LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM
ISSUED
Sec. 1. Who are incompetent to serve as executors or administrators

• EXECUTOR – person named in the will to administer decedent’s estate to

Q: Your sister, single, American citizen, died last September carry out provisions thereof
1999 in Manila, leaving real estate in Cavite. You have information that she • ADMINISTRATOR – person appointed by the court to administer the estate
executed a will in Pennsylvania, U.S.A., and that this will was duly probated • Administrator need not be an heir – can be a stranger to the deceased, such
by a Pennsylvania court. To effectively protect your interest in your deceased as a creditor.
sister's estate, what should you do?
GROUNDS FOR INCOMPETENCE
Ans.: File for probate of the will in Cavite where she left property and ask
for appointment as administrator. (See Rule 77; Cayetano v. Leonidas, 129 1. Minority
SCRA 522 [1984]) 2. Non-residence
3. Unfitness
a. drunkenness
b. incompetence
• Reprobate of will c. want of understanding
d. want of integrity
While foreign laws do not prove themselves in our jurisdiction and our courts e. conviction of offense involving moral turpitude (anything done contrary to
are not authorized to take judicial notice of them; however, petitioner, as justice, honesty, good morals)
ancillary administrator of Audrey’s estate, was duty-bound to introduce in
evidence the pertinent law of the State of Maryland. (Ancheta vs. Guersey- • Courts may refuse to appoint a person as executor or administrator
Dalaygon, G.R. No. 139868, June 8, 2006) on ground of UNSUITABLENESS – adverse interest or hostile to
those immediately interested in the estate (Lim vs. Diaz-Maillares, 18
SCRA 371 [1966]).
PUBLICATION AND NOTICE REQUIRED
 14

“Failure to file an income tax return” is not a crime involving moral turpitude upon the issue of filiation. A separate action will only result in a multiplicity of suits.
because the mere omission is already a violation regardless of the fraudulent (Angeles vs. Maglaya, G.R. No. 153798, September 2, 2005)
intent or willfulness of the individual. (Republic vs. Marcos, G.R. No. 130371,
August 4, 2009) 3. person requested by spouse or next of kin

4. principal creditors
Sec. 6. When and to whom letters of administration granted a. if spouse or next of kin is incompetent or unwilling
b. neglects for 30 days after death of decedent to apply for administration,
• When administration granted or to request that administration be granted to some other person

1. No executor named in will
2. Executor/s (is/are):
a. Incompetent
- Minor
- Non-resident
- Unfit
b. Refuse the trust
c. Fail to give bond
3. Person dies intestate
4. Will void and not allowed
) letters of administration
) with will annexed
) letters of administration
) appointment of a special administrator is Certiorari under Rule 65 of the Rules of
5. other person selected by court – if no creditor competent or willing
The order of preference in the appointment of a regular administrator as
provided in the afore-quoted provision does not apply to the selection of a special
administrator. The preference under Section 6, Rule 78 of the Rules of Court for the
next of kin refers to the appointment of a regular administrator, and not of a special
administrator, as the appointment of the latter lies entirely in the discretion of the
court, and is not appealable. Not being appealable, the only remedy against the
Court. (Tan vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008)

• Order of preference in appointment of administrator

1. surviving spouse – partner in conjugal partnership and heir of deceased
2. next of kin
• Meaning of next of kin
On the matter of appointment of administrator of the estate of the deceased,
the surviving spouse is preferred over the next of kin of the decedent. When the law
speaks of “next of kin”, the reference is to those who are entitled, under the statute of
distribution, to the decedent’s property; one whose relationship is such that he is
entitled to share in the estate as distributed, or, in short, an heir. In resolving,
therefore, the issue of whether an applicant for letters of administration is a next of
kin or an heir of the decedent, the probate court perforce has to determine and pass
• Court may reject order of preference
While surviving spouse is entitled to preference in the appointment,
circumstances might warrant his rejection and appointment of someone else, at the
discretion of the court.
The preference for the surviving spouse in Rule 78, Sec. 6 refers to
appointment of a regular administrator, not to that of a special administrator.
Appointment of a special administrator is discretionary with the probate court. (Pi-
Juan v. Vda. de Gurrea,18 SCRA 898 [1986])
• Interest in estate as principal consideration
 15
In the appointment of an administrator, the principal consideration is the
interest in the estate of the one to be appointed.
Those who will reap benefit of a wise, speedy and economical administration
or will suffer consequences of waste, improvidence or mismanagement – have the
HIGHEST INTEREST and MOST INFLUENTIAL MOTIVE to administer estate
correctly (Gonzales vs. Aguinaldo, 190 SCRA 112 [1990]).
The order of preference does not rule out the appointment of co-
administrators, especially in cases where justice and equity demand that opposing
parties or factions be represented in the management of the estate.
Q: A is appointed administrator of the estate of his deceased wife.
Subsequently a will of the wife is discovered in which B is named executor. Acting on
this designation in the will, which will had in the meanwhile been duly delivered up to
it, the court removes A and appoints B as administrator. Is the change proper?
Ans.: No. Letters testamentary can be issued to a person named as executor
in a will only after a will has been proved and allowed in court. (Rule 78, Sec. 4)
RULE 79
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY, PETITION AND
CONTEST
FOR LETTERS OF ADMINISTRATION
• LETTERS TESTAMENTARY – issued to executor
• LETTERS OF ADMINISTRATION WITH WILL ANNEXED – issued to
administrator when there is no executor named in will, or executor is
incompetent, refuses trust or fails to give bond.
• LETTERS OF ADMINISTRATION – issued to administrator in intestate
proceedings.
Sec. 1. Opposition to issuance of letters testamentary. Simultaneous
petition for administration
Any person interested in a will may oppose in writing the issuance of letters
testamentary to persons named as executors, and at the same time file petition for
letters of administration with will annexed.
Meaning of “interested person” – one who would be benefited by the
estate (heir), or one who has a claim against the estate (creditor). Interest must be
MATERIAL and DIRECT, not merely indirect or contingent (Sagunsin vs. Lindayag, 6
SCRA 874 [YEAR]).
An “interested person” has been defined as one who would be benefited by
the estate, such as an heir, or one who has a claim against the estate, such as a
creditor. The interest must be material and direct, and not merely indirect or
contingent (San Luis vs. San Luis, G.R. No. 133743, February 6, 2007)
Where the right of the person filing a petition for the issuance of letters of
administration is dependent on a fact which has not been established or worse, can
no longer be established, such contingent interest does not make her an interested
party. (Tayag vs. Tayag-Gallor, G.R. No. 174680, March 24, 2008)
The appointment of an administrator is a final order under Rule 109 and as
such may be contested by APPEAL. (Rule 109)
PUBLICATION AND NOTICE REQUIRED (Sec. 3, Rule 79)
Publication and notice of hearing (per Sec. 3, Rule 76) jurisdictional.
Also, notice to “known heirs and creditors of the decedent, and to any other person
believed to have an interest in the estate” (per Sec. 4, Rule 76) if names and
addresses are known (De Arranz vs. Galing).
RULE 80
SPECIAL ADMINISTRATOR
 16

An Order appointing special administrator interlocutory in nature and mere

incident in the judicial proceedings, hence not appealable (Samson vs. Samson, 102
• WHEN IS SPECIAL ADMINISTRATOR APPOINTED Phil. 735).

1. When there is delay in granting letters testamentary or of administration The appointment and removal of a special administrator is purely discretionary
by any cause and is not appealable. (De Gala v. Gonzales, 53 Phil. 104 [19291; Alcasid V.
- including appeal from allowance or disallowance of will Samson, 102 Phil. 735 [1957])
2. court may appoint special administrator to take possession and charge of
the estate of the deceased
3. until
a. questions causing delay decided or Q: A petition to probate a will was dismissed on the ground that all the
b. executors or administrators appointed properties of the estate had already been donated to movants during the testator's
lifetime. Is the dismissal correct?

The appointment of a special administrator is justified only when there is delay Ans.: No. Probate court should have appointed a special administrator under
in granting letters, testamentary (in case the decedent leaves behind a will) or Rule 80, Sec. 1. The special administrator may, in behalf of the heirs, decide to bring
administrative (in the event that the decedent leaves behind no will, as in the Petition an action to annul the donation. (De Guzman v. Guadiz, 96 SCRA 938 [1980])
at bar) occasioned by any cause. The principal object of the appointment of a
temporary administrator is to preserve the estate until it can pass into the hands of a
person fully authorized to administer it for the benefit of creditors and heirs. (Tan vs.
Gedorio, Jr., G.R. No. 166520, March 14, 2008)
RULE 81
An executor-designate is entitled to preference in appointment as special BONDS OF EXECUTORS AND ADMINISTRATORS
administrator. (Ozaeta v. Pecson, 93 Phil. 416 [1953])

Unlike a regular administrator, a special administrator cannot pay estate Sec. 1. Bonds to be given before issuance of letters. Amounts.
debts unless so ordered by the court and he may sell only such perishable and other Conditions.
estate property as the court orders sold. (Rule 80, Sec. 2)
• Conditions of bond

• PUBLICATION AND NOTICE REQUIRED 1. make and return inventory within 3 months
2. administer estate
Even in the appointment of a special administrator, same jurisdictional 3. pay and discharge all debts, legacies, and charges
requirements under Sec. 3, Rule 79. 4. render accounting within one year
5. perform all orders of court
• ORDER APPOINTING SPECIAL ADMINISTRATOR NOT APPEALABLE
 17

RULE 82 Ans.: Court should deny Z's petition. There is no ground for the
REVOCATION OF ADMINISTRATION, DEATH, removal of Y as administrator. The fact that Z is the only heir is not one of the
RESIGNATION AND REMOVAL OF EXECUTORS grounds provided for by Rule 82.
AND ADMINISTRATORS

Sec. 1. Administration revoked if will discovered. Proceedings Sec. 3. Acts before revocation, resignation, or removal to be valid.
thereon.
Effect of revocation, resignation or removal of executor or
1. If after letters of administration have been granted as if decedent died administrator on his previous acts – lawful acts shall have same validity as if no
intestate, his will is PROVED AND ALLOWED by the court, revocation, resignation or removal.
2. letters of administration shall be REVOKED and all powers thereunder
cease. • Rule on Precedence of Probate of Will
3. Administrator shall forthwith
a. Surrender letters to the court and Sec. 1, Rule 82 was followed in Uriarte vs. CFI of Negros Occidental:
b. Render his account within such time as the court directs
4. proceedings for issuance of letters testamentary or of administration will 1. If in the course of intestate proceedings, it is found out that decedent
follow. left a last will,
2. probate proceedings should REPLACE intestate proceedings
Sec. 2. Court may remove or accept resignation of executor or 3. even if at that stage an administrator had already been appointed.
administrator. 4. Administrator is required to –
Proceedings upon death, resignation, or removal. a. render final account
b. turn over estate in his possession to executor subsequently
appointed
Concerning complaints against the general competence of the administrator, the 5. Without prejudice that proceeding shall continue as intestacy should
proper remedy is to seek the removal of the administrator in accordance with Section alleged will be rejected or disapproved.
2, Rule 82. While the provision is silent as to who may seek with the court the
removal of the administrator, a creditor, even a contingent one, would have the Probate of the will is mandatory (Sec. 1, Rule 75) and therefore takes
personality to seek such relief. After all, the interest of the creditor in the estate precedence over intestate proceedings.
relates to the preservation of sufficient assets to answer for the debt, and the general
competence or good faith of the administrator is necessary to fulfill such purpose. • WHAT TO DO WITH PROCEEDINGS – DISCRETIONARY WITH COURT
(Hilado vs. Court of Appeals, G.R. No. 164108, May 8, 2009)
Whether intestate proceedings already commenced should be discontinued
and a new proceeding under a separate number and title should be constituted –
*In intestate proceedings of X, deceased, the court appointed Y his brother, entirely a MATTER OF FORM and lies within SOUND DISCRETION of court. Does
as administrator. Two months later, Z, the only legitimate son of X, petitions the court not prejudice substantial rights of heirs and creditors (Intestate Estate of Wolfson, 45
to appoint him as administrator on the ground that he is X's only heir. How should the SCRA 381).
court resolve Z's petition?
 18
RULE 84
GENERAL POWERS AND DUTIES OF EXECUTORS
AND ADMINISTRATORS
• Purpose of administration – liquidation of the estate and distribution of the
residue among the heirs, legatees and devisees.
• Liquidation – (a) determination of all the assets of the estate and (b)
payment of all debts and expenses (Luzon Surety vs. Quebrar, 127 SCRA
301)
• Powers and duties of executor and administrator
1. administration
2. liquidation
3. distribution
The administrator may only deliver properties of the estate to the heirs upon order of
the Court. (Silverio, Jr. vs. Court of Appeals, G.R. No. 178933, September 16, 2009)
An administrator, after submitting his inventory, may pray for an order directing
another to deliver to him property included in the inventory provided there is no
adverse claim to the title. An exception is if the claimant is an heir and all the heirs
agree to submit the issue of title to the probate court.
Under the Civil Code, ownership of estate passes to the heirs instantly upon the
death. The only ground to demand possession from the heirs is if it is required to be
sold to pay the decedent’s debts. THERE IS NO OCCASION FOR THE
INTERVENTION OF AN ADMINISTRATOR IN THE SETTLEMENT OR PARTITION
OF THE ESTATE AMONG THE HEIRS WHERE THERE ARE NO DEBTS.
(Malahacan v. Ignacio, 19 Phil. 434 [1911])
RULE 85
ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND
ADMINISTRATORS
RULE 86
CLAIMS AGAINST ESTATE
• Notice to creditors – immediately after granting letters testamentary or
of administration, court shall issue
- NOTICE requiring all persons having MONEY CLAIMS against the
estate
- to FILE them in the office of the clerk of court (Sec. 1).
• Time for filing claims – not more than 12 months nor less than 6
months after date of FIRST PUBLICATION of the notice (Sec. 2).
• New period allowed (Sec. 2, second sentence)
At any time before order of distribution is entered, creditor who failed to file
his claim within the time set may move to be allowed to file such claim.
Court may for good cause shown and on such terms as are just allow such
claim to be filed within a period NOT EXCEEDING ONE MONTH.
One month does not commence from expiration of the original period for
filing claims. It begins from the date of the order of the court allowing said filing
(Barredo vs. CA, 6 SCRA 620 [YEAR]).
• Statute of Non-Claims (SNC) – the period fixed for the filing of claims
against the estate.
 19
1. Period fixed by probate court must not be less than 6 months nor more than
12 months from the date of first publication of the notice.
2. Such period once fixed by the court is MANDATORY – it cannot be
shortened.
ex. Period fixed within 6 months
3. SNC supersedes statute of limitations – even if claim has not yet prescribed,
it may be barred by SNC.
• Ruling spirit of our probate law – SPEEDY SETTLEMENT of the estate of
deceased persons for the benefit of CREDITORS and those entitled to the
RESIDUE by way of INHERITANCE or LEGACY after the debts and
expenses of administration have been PAID (Sikat vs. Villanueva, 57 Phil.
486 [YEAR]).
• Insofar as claims against the estates of deceased persons are concerned,
the statute of non-claims supersedes the statute of limitations. Hence, if a
debtor dies, his creditors must present their claims, whether the same be
due, not due or contingent, in the settlement proceeding of the estate of the
deceased debtor within the time provided in the statute of non-claims, or the
same shall be barred forever. (Estate of De Dios, 24 Phil. 573)
• Publication of notice to creditors (Sec. 3)
Immediately after notice to creditors is issued, executor or administrator shall
cause -
1. publication of said notice 3 weeks successively in newspaper of general
circulation in the province, and
2. posting for the same period in
a. 4 public places in the province and
b. 2 public places in the municipality where decedent last resided
PUBLICATION OF NOTICE TO CREDITORS CONSTRUCTIVE NOTICE TO THE
WHOLE WORLD
Hence, creditor cannot be permitted to file his claim beyond the period fixed
in the notice on the ground that he had no knowledge of the administration
proceedings (Villanueva vs. PNB, 9 SCRA 145).
• Claims that must be filed (Sec. 5)
1. Claims for money against the decedent arising from contract, express or
implied, whether due, not due or contingent
2. Claims for funeral expenses and expenses for last sickness of decedent
3. Judgment for money against decedent
a. The judgment must be presented as a claim against the estate where the
judgment debtor dies before levy on execution of his properties
(Evangelista vs. La Provedra, 38 SCRA 379 [YEAR).
b. When the action is for recovery of money arising from contract, and
defendant dies before entry of final judgment, it shall not be dismissed
but shall be allowed to continue until entry of final judgment. A favorable
judgment obtained by plaintiff shall be enforced under Rule 86 (Rule 3,
Sec. 20).
• Money claims against a deceased debtor
1. Section 5 of Rule 86 of the Rules of Court expressly allows the prosecution of
money claims arising from a contract against the estate of a deceased debtor. Those
claims are not actually extinguished. What is extinguished is only the obligee’s action
or suit filed before the court, which is not then acting as a probate court. In the
present case, whatever monetary liabilities or obligations Santos had under his
contracts with respondent were not intransmissible by their nature, by stipulation, or
by provision of law. Hence, his death did not result in the extinguishment of those
obligations or liabilities, which merely passed on to his estate. Death is not a defense
that he or his estate can set up to wipe out the obligations under the performance
bond. (Stronghold Insurance Company, Inc. vs. Republic-Asahi Glass Corporation,
G.R. No. 147561, June, 2006)
2. Respondents’ monetary claim shall be governed by Section 20 (then Section
21), Rule 3 In relation to Section 5, Rule 86 of the Rules of Court. Thus, said money
claims must be filed against the estate of petitioner Melencio Gabriel. (Gabriel vs.
Bilon, G.R. No. 146989, February 7, 2007)
 20
3. An administrator cannot enter into an amicable settlement with a plaintiff-creditor
in a separate case based on a promissory note executed by the deceased. The claim
being one arising from contract, it should be filed in the probate court. (Estate of
Olave v. Reyes, 123 SCRA 767 [1983])
• Must be filed within the time limited in the notice, otherwise they are
BARRED FOREVER.
Exception – may be set forth as COUNTERCLAIMS in any action executor or
administrator may bring against the claimants.
• Rationale: 1) to protect the estate of the deceased by informing the executor
or administrator of the claims against it, thus enabling him to examine each
claim and to determine whether it is a proper one which should be allowed;
2) speedy settlement of affairs of deceased; and 3) early delivery of property
to distributes, legatees, or heirs (Union Bank of the Philippines vs.
Santibaňez, G.R. No. 149926, February 23, 2005).
A money claim against an estate is more akin to a motion for creditors' claims to
be recognized and taken into consideration in the proper disposition of the properties
of the estate.
A money claim is only an incidental matter in the main action for the settlement
of the decedent's estate; more so if the claim is contingent since the claimant cannot
even institute a separate action for a mere contingent claim. Hence, herein
petitioner's contingent money claim, not being an initiatory pleading, does not require
a certification against non-forum shopping.
(Sheker vs. Estate of Alice Sheker, G.R. No. 157912, December 13, 2007)
• Only MONEY CLAIMS may be presented in the testate or intestate
proceedings.
• NOT ALL MONEY CLAIMS but only those arising upon a liability contracted
by decedent before his death.
• Claims arising after his death cannot be presented EXCEPT
- funeral expenses
- expenses for last sickness
N.B. Claims arising after decedent’s death may be allowed as expenses of
administration.
• Enumeration exclusive – refers only to contractual money claims
Only claims for money, debt or interest thereon, arising from contract can be
presented in the testate or intestate proceedings.
• Claims which survive death of accused
Claim for civil liability survives notwithstanding death of accused if the same
may also be based on a source of obligation other than delict (contract, law, quasi-
contract, quasi-delict)
Separate civil action may be enforced either against
a. Estate of accused (contract)
b. Executor/ administrator (law, quasi-contract, quasi-delict)
(People vs. Bayotas, 236 SCRA 239 [1994]).
Civil actions for tort or quasi-delict do not fall within the class of claims to be
filed under the notice to creditors required under Rule 86. These actions, being civil,
survive the death of the decedent and may be commenced against the administrator
pursuant to Section 1, Rule 87.. (Hilado vs. Court of Appeals, G.R. No. 164108, May
8, 2009)
A notice of lis pendens annotated on the real properties subject of the
settlement of an estate may be cancelled on the ground that it is not necessary to
protect the right of the interested party. The administration of the estate is subject to
the supervision of the probate court and the state properties are under custodia legis.
(Vda. de Kilayko v. Tengco, 207 SCRA 600 [1992])
 21
The mortgagee-creditor of the decedent who elects to rely on the mortgage alone
may no longer recover any deficiency therefrom in the proceedings for the settlement
of the decedent’s estate. (Sec. 7)
• Execution of final judgment not proper remedy but filing of claim
When judgment in a civil case has become final and executory, execution not
proper remedy to enforce payment; claimant should PRESENT CLAIM before
probate court (Domingo vs. Garlitos, June 29, 1963).
• Mandamus not available – immediate payment of claim by the administrator
is NOT A MATTER OF RIGHT (Echaus vs. Blanco, 179 SCRA 704 [1985]).
• Ordinary action for collection not allowed (Nacar vs. Nistal, 119 SCRA
29 [YEAR])
• Judgment appealable (Sec. 13) – judgment of the court approving or
disapproving a claim is APPEALABLE as in ordinary actions
From an estate proceeding perspective, the Special Administrator’s commission is
no less a claim against the estate than a claim that third parties may make. xxx The
ruling on the extent of the Special Administrator’s commission – effectively, a claim
by the special administrator against the estate – is the lower court’s last word on the
matter and one that is appealable. (Briones vs. Henson-Cruz, G.R. No. 159130,
August 22, 2008)
Answer of executor or administrator. Offsets. (Sec. 10) – The
disallowance of a creditor’s claim against the estate does not affect the
administrator’s counterclaim against said creditor. A creditor who presents claim
against an estate submits himself to the jurisdiction of the probate court, and the
circumstance that his claim is disallowed does not affect the probate court's ju-
risdiction to allow offset against him. (Bayot v. Zurbito, 39 Phil. 650 [1919])
The administrator may also prosecute the counterclaim as an independent
proceeding against the creditor. It is the duty of the administrator under Sec. 10, Rule
86 to allege an offset against a creditor's claim. The provision in the third sentence of
this section that the failure to allege the estate claims as an offset shall bar them, is
directory only in view of the overriding provision in Sec. 2, Rule 87 which gives general
authority to an administrator to bring an action upon any cause of action of the
deceased which survives. The barring provision under Sec. 10, Rule 86 is of a highly
penal nature, as it takes away from the administrator a privilege which the law
concedes to all other litigants, namely, the right to elect between presenting a claim as
an offset and making it the subject of an independent proceeding. Therefore, this
provision should be interpreted in the mildest possible sense. (Bayot v. Zurbito, supra)
RULE 87
ACTIONS BY AND AGAINST EXECUTORS
AND ADMINISTRATORS
Sec. 1. Actions which may and which may not be brought
against executor or administrator.
Sec. 2. Executor or administrator may bring or defend actions
which survive.
1. NOT ALLOWED AGAINST EXECUTOR OR ADMINISTRATOR – action
upon claim for recovery of money or debt or interest thereon.
- MUST BE AGAINST ESTATE (Secs. 1, 2 & 5, Rule 86)
2. ALLOWED – actions which survive
a. Actions to recover real or personal property or interest thereon, or to
enforce a lien thereon
Civil Case No. 2570 is an action for quieting of title with damages which is an
action involving real property. It is an action that survives pursuant to Section 1, Rule
87 as the claim is not extinguished by the death of a party. (Saligumba vs. Palanog,
G.R. No. 143365, December 4, 2008)
 22
Civil Case No. 3488, which is an action for the recovery of a personal property, a
motor vehicle, is an action that survives pursuant to Section 1, Rule 87 of the Rules
of Court. As such, it is not extinguished by the death of a party. (Sarsaba vs. Vda.
de Te, G.R. No. 175910, July 30, 2009)
b. Actions to recover damages for an injury to person or property, real or
personal
• Executor or administrator may sue upon any cause of action which accrued
to the decedent during his lifetime (Bayot vs. Sorbito, 39 Phil. 650).
• Any action affecting the property rights of a deceased which may be brought
by or against him if he were alive, may be instituted and prosecuted by or
against the administrator, unless by its very nature, it cannot survive,
because death extinguishes such right.
• A regular administrator of an estate may recover possession of property
believed to belong to the estate. The property should first be included in the
inventory of estate assets. Then, the administrator should be authorized by
the probate court to institute a separate action for the recovery of the
property. (See Cuison v. Ramolete, 129 SCRA 495 [1984]); De la Cruz v.
Camon, 16 SCRA 688 [1988])
• Rentals are not property in the hands of the administrator and therefore are
not within the effective control of the probate court. Rental does not come
within the concept of money of the deceased "concealed, embezzled or
fraudulently conveyed" under Sec. 6, Rule 87. The recovery of rental should
be by a separate suit commenced by the administrator under Sec. 2, Rule
87. When the demand is in favor of the administrator and the party against
whom it is enforced is a third party, not under the court's jurisdiction, the
demand cannot be by mere motion by the administrator but by individual
action against the third person. (De la Cruz V. Camon,16 SCRA 886 [1966])
• Q: Your client is severely injured in a vehicular accident due to the
negligence of the driver (X) of the other vehicle. As a consequence of the
accident, X died. Would you advise your client to file any claim in X's estate
proceedings?
Ans.: Yes. While I would advise my client to sue X's administrator or
executor in the regular courts, I would further advise him to file a contingent
claim in X's estate proceedings for any money judgment he may recover. A
money judgment is a provable claim which may be barred if not filed within
the period fixed under the Statute of Non-claims.
• There is no prohibition against making this special administrator a defendant
in a suit against the estate. Otherwise, the statute of limitations would run
against the creditor where the appointment of a regular administrator is
delayed.
• Creditors may ask for leave of court to file an action in the name of the
administrator to set aside conveyances believed to have been made in fraud
of creditors. (Rule 87, Sec. 10)
Sec. 3. Heir (and devisee) may not sue (executor or administrator to
recover title or possession or for damages to property)
until share assigned.
Before distribution is made or before any residue known – heirs and devisees
have NO CAUSE OF ACTION against the administrator for recovery of property left
by the deceased (Lao vs. Dee, 90 Phil. 868 [YEAR]).
• When heirs may file action in court
General rule: heirs have no legal standing to sue for recovery or protection
of property rights of the deceased.
Exceptions:
1. Pending the filing of administration proceedings – under Art, 777, rights
to succession are transmitted from the moment of death of the
decedent.
 23
2. Administration proceedings have already been commenced but
administrator has not yet been appointed.
3. Executor or administrator is unwilling or refuses to bring suit.
4. Administrator is alleged to have participated in the act complained of
and he is made a party defendant.
Sec. 8. Embezzlement before letters issued.
• Double value rule
If before grant of letters testamentary or of administration, a person
embezzles or alienates money or property of the deceased – liable to an action in
favor of executor/administrator for DOUBLE THE VALUE of the property sold,
embezzled or alienated.
Sec. 9. Property fraudulently conveyed by deceased may be recovered.
The creditor of the decedent who believes that the latter has transferred his
properties during his lifetime in fraud of creditors may file for letters of administration
(Rule 79, Sec. 2) and then ask the administrator to bring an action to recover such
fraudulently conveyed properties (Rule 87, Sec. 9), or he may ask permission of the
probate court for himself to bring such action. (Rule 87, Sec. 10; (Heirs of Gregoire v.
Baker, 51 Phil. 75 [1927])
RULE 88
PAYMENT OF DEBTS OF THE ESTATE
Sec. 1. Debts paid in full if estate sufficient
Sec. 2. Part of estate from which debt paid when provision made by
will.
Sec. 7. Order of payment if estate insolvent
-- follow preference of credits under Arts. 1059, 2239-2251 of Civil Code
• TIME FOR PAYING DEBTS (Secs. 15 & 16)
1. Executor/administrator allowed to pay debts (and legacies) for a period
not more than 1 year.
2. Extendible (on application of executor/ administrator and after notice and
hearing) – not exceeding 6 months for a single extension.
3. Whole period allowed to original executor/administrator shall not exceed
2 years.
4. Successor of dead executor/administrator may have time extended on
notice not exceeding 6 months at a time and not exceeding 6 months
beyond the time allowed to original executor/administrator.
Sec. 6. Court to fix contributive shares where devisees, legatees or
heirs have been in possession.
1. Where devisees, legatees or heirs have entered into possession or the
estate before debts and expenses settled and paid, and
2. have become liable to contribute for payment of such debts and expenses,
3. Court may, after hearing, order settlement of their several liabilities and order
how much and in what manner each person shall contribute and may issue
execution as circumstances require.
NOTE: This provision clearly authorizes execution to enforce payment of the
debts of the estate. Legacy is not a debt of the estate – legatees are among those
against whom execution is authorized to be issued (Pastor vs. CA, 122 SCRA 885
[1983]).
Compare to: Rule 88, Secs. 15 & 16
Rule 89, Secs. 1-5, 7 (a)
referring to payment of debts and/or legacies
As ruled in Pastor, ordered payment of legacy violative of rule requiring prior
liquidation of estate (determination of assets of estate and payment of debts and
expenses) before apportionment and distributed of residue among heirs; legatees
and devisees.
 24

RULE 89
Correct rule: Sec. 1 of Rule 90 does not include legacies as among those SALES, MORTGAGES AND OTHER ENCUMBRANCES
that should be paid before order of distribution – only debts, funeral charges, OF PROPERTY OF DECEDENT
expenses of administration, allowance to widow and inheritance tax.
Sec. 1. Order of sale of personality
After debts and expenses of administration paid, residue given to heirs and those
entitled by way of inheritance or legacy (Magbanua vs. Akol, 72 Phil. 567). Purpose -- when necessary for paying debts, expenses of administration, or
of administration – distribution of residue among heirs and legatees after payment of legacies, or for preservation of property
debts and expenses (Luzon Surety vs. Quebrar, 127 SCRA 301).
Sec. 2. Sale, mortgage, or other encumbrance of realty to pay debts
and legacies though personality not exhausted
Q: X, an heir has entered into possession of the lots assigned
to him after partition of the estate by the probate court (RTC Manila). -- when necessary and beneficial to persons interested (heirs, devisees
Thereafter, X dies and proceedings for the settlement of his estate were filed and legatees)
in another probate court (RTC Quezon City). Can the RTC Manila probate
court order the turnover of X’s lots to satisfy the debts corresponding to the
latter’s share in the previous estate? Sec. 3. Persons interested may prevent such sale, etc., by giving bond

Ans: No. The RTC-Manila cannot order X’s administrator to turn over -- The mortgagee, as a "person interested in the estate,” may oppose the
a lot which is now part of X's estate and therefore is custodia legis of another grant of authority to sell by putting up a bond in a sum to be fixed by the court
court — as this would be undue inter-meddling with a coordinate and co- conditioned to pay the debts, expenses of administration, and legacies within
equal court. (Ignacio v. Elchico, 20 SCRA 100 [1967]) such time as the court directs; and such bond shall be for the security of the
creditors, as well as of the executor or administrator, and may be prosecuted
Q: May a probate court issue a writ of execution for the for the benefit of either. (Pio Barreto v. CA, 131 SCRA 606 [1984])
payment of estate debts?
Sec. 4. Sale of real or personal estate as beneficial to interested
persons
Ans.: Only if the heirs, devisees and legatees have entered into
possession of their respective portions in the estate prior to payment of debts -- when beneficial (to heirs, devisees and legatees, and other interested
and expenses of administration, in which case the probate court may order persons) but not necessary to pay debts, legacies, or expenses of
the heirs, devisees and legatees to contribute to the payment and may issue administration
execution if circumstances require. (Rule 88, Sec. 6) Otherwise, the proper
procedure is for the probate court to order the sale or mortgage of estate • Written notice mandatory
property from the proceeds of which the debts shall be paid. (Aldamiz v. CFI
of Mindoro, 85 Phil. 228 [1949]) Written notice of the application (for authority to sell, mortgage or encumber
property of the estate) as well as the time and place of hearing to be served on heirs,
devisees and legatees residing in the Philippines is mandatory. Without such notice,
the sale, mortgage or encumbrance is VOID.
 25
• Sales executed by heirs
However, heirs can dispose of their own pro indiviso shares in the co-
heirship or co-ownership. They can sell their rights, interests or participation in the
property under administration. A stipulation requiring court approval does not affect
the validity and effectivity of the sale as regards the selling heirs.
• Writ of execution not proper procedure for payment of debts and
expenses of administration
Upon motion of the administrator with notice to all heirs, legatees and
devisees residing in the Philippines, court shall order sale of personal property or
sale or mortgage of real property of the deceased to pay debts and expenses of
administration out of the proceeds of the sale or mortgage.
Exception: where devisees, legatees or heirs have entered into possession
of their respective portions in the estate prior to settlement and payment of debts and
expenses (See Sec. 6, Rule 88 above).
RULE 90
DISTRIBUTION AND PARTITION OF ESTATE
Sec. 1. When order for distribution of residue made
• General rule: distribution of the residue to persons entitled thereto after
notice and hearing and after payment of –
a. debts
b. funeral charges
c. expenses of administration
d. allowance to widow
e. inheritance tax
Exception: distribution before payment of obligations provided
distributees give BOND conditioned for payment thereof within such time as
court directs.
• Requisites before distribution of estate
1. Payment of obligations (liquidation of estate)
2. Declaration of heirs – to determine to whom residue of the estate should
be distributed. Separate action for declaration of heirs not proper.
The Regional Trial Court in the instant case, acting in its general jurisdiction, is
devoid of authority to render an adjudication and resolve the issue of advancement of
the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No.
71075 for reconveyance and annulment of title with damages is not, to our mind, the
proper vehicle to thresh out said question.
The net estate of the decedent must be ascertained, by deducting all payable
obligations and charges from the value of the property owned by the deceased at the
time of his death; then, all donations subject to collation would be added to it. With
the partible estate thus determined, the legitime of the compulsory heir or heirs can
be established; and only then can it be ascertained whether or not a donation had
prejudiced the legitimes. (Heirs of Doronio versus Heirs of Doronio. G.R. No. 169454,
December 27, 2007)
WHEN PROBATE COURT LOSES JURISDICTION
Probate court loses jurisdiction of an estate under administration only AFTER
payment of all debts and remaining estate DELIVERED to heirs entitled to receive
the same (Guilas vs. Judge of CFI of Pampanga, 43 SCRA 111 [YEAR]).
Finality of approval of project of partition by itself does NOT TERMINATE
probate proceeding (Timbol vs. Cano, 1 SCRA 1271 [YEAR]).
A judicial partition is not final and conclusive and does not prevent the heir
from bringing an action to obtain his share, provided the prescriptive period has not
closed (Mari vs. Bonilla, 83 SCRA 1137 [YEAR]).
 26
The RTC of Makati, acting as a special commercial court, has no jurisdiction to
settle, partition, and distribute the estate of a deceased.
A probate court has the power to enforce an accounting as a necessary means
to its authority to determine the properties included in the inventory of the estate to be
administered, divided up, and distributed. Beyond this, the determination of title or
ownership over the subject shares (whether belonging to Anastacia or Oscar) may be
conclusively settled by the probate court as a question of collation or advancement.
(Reyes vs. RTC Makati, Branch 142, G.R. No. 165744, August 11, 2008)
Partial distribution of the estate should not have been allowed. There was no
determination on sufficiency of assets or absence of any outstanding obligations of
the estate of the late Raymond Triviere made by the RTC in this case. In fact, there
is a pending claim by LCN against the estate, and the amount thereof exceeds the
value of the entire estate. (Quasha Ancheta Pena and Nolasco Law Office vs. LCN
Construction Corp., G.R. No. 174873, August 26, 2008)
Although the right of an heir over the property of the decedent is inchoate as
long as the estate has not been fully settled and partitioned, the law allows a co-
owner to exercise rights of ownership over such inchoate right.
Once an action for the settlement of an estate is filed with the court, the
properties included therein are under the control of the intestate court. And not even
the administrator may take possession of any property that is part of the estate
without the prior authority of the Court.
(Silverio, Jr. vs. Court of Appeals, G.R. No. 178933, September 16, 2009)
Under Sec. 1, Rule 90, the probate court has custody and control of the
entire estate, and if the administrator has possession of the property the probate
court may order him to deliver possession thereof to the person entitled thereto.
Similarly, if the property to be delivered happens to be in the possession of another
person, especially one of the heirs who is already under its jurisdiction, the probate
court may order the delivery of its possession to its rightful distributee. The question
of the objecting heir's title and possession has been concluded by the partition.
Where the property has been included in the partition and there is no allegation that
its inclusion was through improper means and without the claimant's knowledge, the
partition bars any further litigation on the title to this property and operates to bring it
to the court for proper distribution according to the tenor thereof. (Torres v.
Encarnacion, 69 Phil. 678 [1951])
REMEDY OF HEIR WHO HAS NOT RECEIVED HIS SHARE
To demand his share through -
a. a proper motion in the same probate or administration proceedings,
OR
b. motion to reopen if it had already been closed, and not through an
independent action which would be tried by another court or judge
which might reverse a decision or order of the probate court already
final and executed and reshuffle properties long ago distributed and
disposed of (Guilas, supra).
• Four cases illustrate the proper remedy: Vda de Lopez vs. Lopez,
Divinagracia vs. Rovira, Guillas vs. Judge of CFI of Pampanga and Heirs of
Jesus Fran vs. Salas.
• Lopez (35 SCRA 81 [YEAR ]) compared to Divinagracia (72 SCRA 307 [
YEAR ]):
Both involved the issue of the reglementary period within which NON-PARTIES
to the partition, heir, devisee or any person interested in the estate, can reopen the
case.
Conclusion – if proceeding already closed, motion to reopen may be filed by a
non-party deprived of his lawful participation, as long as it is within 30 days (now 15
days) or before order closing the proceedings becomes final.
• Guilas (43 SCRA 111 [YEAR ]) compared to Fran (210 SCRA 303 [YEAR]):
Both involved PARTIES who have not received their shares.
Conclusion – parties to partition agreement who have not received their shares
can file a motion for execution within 5 YEARS. But if other grounds such as forgery
of will are raised, final judgment cannot be attacked except through a separate
 27

action. The validity of a final judgment can be assailed through a petition for relief 3. Court Order
under Rule 38, annulment of judgment under Rule 47, and petition for certiorari under 4. Claims Against Estate
Rule 65, assuming the judgment is void for want of jurisdiction. 5. Payment of Debts of Estate
6. Distribution and Partition of Estate
7. Closing
REMEDY OF PRETERITED HEIR

The intestate proceedings, although closed and terminated, can still be opened SETTLEMENT OF ESTATE
within the prescriptive period upon petition by the preterited heir (Solivio vs. CA, 182 STAGES
SCRA 119 [YEAR]).

Prescriptive period – 10 years. Action upon an obligation created by law must be I

brought within 10 years from the time the right of action accrues (Art. 1144, Civil PETITION
Code).

• Where judgment has become final, what is the remedy for inclusion of a Testate Intestate
party-heir?
Filing of petition Filing of petition
After the decision became final and executory, the trial judge lost jurisdiction over for allowance for issuance of
the case. Any modification that he would make, i.e., the inclusion of Mary Lyon Martin of will – by executor, letters of
would be in excess of his authority. The remedy of Mary is to file an INDEPENDENT devisee, legatee, administration -
SUIT against the parties and all other heirs for her share in the subject property, in other interested person person
order that all the parties in interest can prove their respective claims (Nunal vs. CA, (Rule 76, Secs. 1 & 2) (Rule 79, Sec. 2)
221 SCRA 26 [1991]).

Q: Petition for probate of a will is opposed by B, adopted son of the Order setting petition for hearing
deceased, on the ground that he was disinherited in the will, and by C, daughter, on
the ground that she was preterited in the will. Resolve the oppositions.
Notice of hearing
Ans.: C's opposition should be upheld but not B's. In preterition the
annulment of the will is generally total, whereas in disinheritance the nullity is limited
to the portion of the estate of which the disinherited has been legally deprived. 1. Publication of notice for
three consecutive weeks
(Rule 76, Sec. 3)
SEVEN STAGES IN SETTLEMENT OF ESTATE

1. Petition 2. Notice by mail or personally

2. Hearing to designated or known heirs,
 28

legatees, devisees, executor

(Rule 76, Sec. 4);
File grounds for contest
known heirs, creditors, (Rule 76, Sec. 10)
other interested persons
(Rule 79, Sec. 3)

III

COURT ORDER
II

HEARING Order or decision allowing

will or admitting it to probate
Proof of notice of hearing
(Rule 76, Sec. 5)
(Rule 79, Sec. 5) Certificate of allowance
attached to prove will
(Rule 76, Sec. 13)
Evidence for petitioner

1. Death of decedent Order for issuance

2. Residence at time of death of letters testamentary
(Rule 78, Sec. 4)

Testimony/ies of Decedent left no will or

subscribing there is no competent Order for issuance of
witness/es and willing executor letters of administration
(Rule 76 Secs. 5 & 11) (Rule 79, Sec. 5) (Rule 79, Sec. 5)

Petitioner is qualified for

appointment Issuance of letters by clerk of court
(Rule 78, Secs. 1 & 6)
Proof when
testator is petitioner Oath of executor or administrator
(Rule 76, Sec. 12)

Evidence for Oppositor Filing of executor or administrator’s bond

 29

(Rule 81, Sec. 1)

Judgment approving or
Filing of inventory within 3 mos. disapproving claim
(Rule 81, Sec. 1[a]) (Rule 86, Sec. 13)

Accounting within 1 year V

(Rule 81, Sec. 1 [c];
Rule 85, Sec. 8) PAYMENT OF DEBTS OF ESTATE

Actions by or against executor or administrator Debts paid in full if estate sufficient

(Rule 87) (Rule 88, Sec. 1)

Order of payment if estate insolvent

(Rule 88, Sec. 7)
IV
Order for payment of debts
CLAIMS AGAINST ESTATE (Rule 88, Sec. 11)

Time for payment not to exceed

Notice of filing of claims –
time for filing not more than
12 mos. nor less than 6 mos.
from first publication
(Rule 86, Secs. 1 & 2)
Publication of notice
for 3 consecutive weeks
and posting
(Rule 86, Secs. 3 & 4)
Filing of claim and answer thereto
(Rule 86, Secs. 9 & 10)
1 year, extendible for 1 more year
(Rule 88, Sec. 15)
Sales, mortgages and other encumbrances
of property of decedent for paying
debts. etc.
(Rule 89)
VI
DISTRIBUTION AND PARTITION OF ESTATE

Trial of contested claim

(Rule 86, Sec. 12) Rule 90
 30

Approval of final accounting - actual occupants and

and project of partition - adjacent lot owners

Actual distribution or delivery to shall be personally notified of the proceeding and given opportunity to present their
heirs of their respective shares valid claims; otherwise, it will be reverted to the state.

• Requisites for filing petition for escheat

VII
1. person died intestate
CLOSING 2. he left properties
3. he left no heirs or persons entitled to the same.
Order declaring proceedings closed
and terminated • Notice and Publication (Sec. 2, Rule 91)

1. Date of hearing not more than 6 months after entry of order.

2. Publication of order at least once a week for 6 consecutive weeks in
newspaper of general circulation in the province.
RULE 91
ESCHEAT • Publication jurisdictional

Publication of the notice of hearing is a jurisdictional requisite, non-

• Escheat defined
Escheat is a proceeding whereby the real and personal property of a
deceased person in the Philippines, who died without leaving any will or legal heirs,
become the property of the state upon his death.
• Nature of Escheat Proceedings
- rests on the principle of ultimate ownership by the state of all property
within its jurisdiction.
• Parties in Escheat Proceedings
An escheat proceeding is initiated by the government through the Solicitor
General. All interested parties, especially the
compliance with which affects the validity of the proceedings (Divino v. Hilario, 62
Phil. 926).
The court where the escheat proceedings were initiated acquires jurisdiction
to hear the petition for escheat by virtue of the publication of the petition. The
jurisdiction acquired cannot be converted into one for the distribution of the
decedent’s estate for which the proper petition must be filed and the proper parties
notified. (Municipality of Magallon v. Bezore, 109 Phil. 829 [1960])
Filing of claim to estate (Sec. 4, Rule 91)
1. Devisee, legatee, widow, widower or other person entitled to such estate
who
2. appears and files claim thereto within 5 years from date of judgment
 31
(Note: 5-year period is prescribed to encourage would-be claimants to be
punctilious in asserting their claims, otherwise they may lose them forever in
a final judgment.)
3. shall have possession and title thereto or if sold, municipality or city
accountable to him for proceeds, after deducting reasonable charges of care
of estate.
4. Claim not made within said time barred forever.
GUARDIANSHIP
• Guardianship – a trust relation in which one person acts for another whom
the law regards as incapable of managing his own affairs. The person who
acts is called the guardian and the incompetent is called the ward.
• Basis of Guardianship (Parens Patriae)
Where minors are involved, the State acts as parens patriae. It is the duty of
protecting the rights of persons or individuals who because of age or incapability are
in an unfavorable position vis-à-vis other parties.
• Purpose of Guardianship
Safeguard the rights and interests of minors and incompetent persons Courts
should be vigilant to see that the rights of such persons are properly protected.
• Guardian – a person in whom the law has entrusted the custody and control
of the person or estate or both of an infant, insane, or other person incapable
of managing his own affairs.
The rules do not necessitate that creditors of the minor or incompetent be
likewise identified and notified. The reason is simple: because their presence is not
essential to the proceedings for appointment of a guardian. They will only insist that
the supposed minor or incompetent is actually capacitated to enter into contracts, so
as to preserve the validity of said contracts and keep the supposed minor or
incompetent obligated to comply therewith. (Alamayri vs. Pabale, G.R. No. 151243,
April 30, 2008)
A motion to recover title and possession to a parcel of land in the possession of
the guardian cannot be filed in the guardianship proceedings of the ward.
Guardianship proceedings are concerned solely with the ward's care and custody
and the proper administration or management of his properties. Conflicts regarding
ownership or title to property in the hands of the guardian, in his capacity as such,
should be litigated in a separate proceeding. (Viloria v. Administrator of Veterans
Affairs, 101 Phil. 762 [1957])
A notice of lis pendens over the ward’s properties may be proper in a
guardianship case so as to give constructive notice to all parties who may deal with
the properties that the ward’s capacity to create any encumbrance or make any
disposition of said property was suspect and was precisely subject of inquiry in the
guardianship proceedings (Gonzales v. Ordonez Benitez,161 SCRA 401 [1990]).
• Governing rule on guardianship of minors
Guardianship of minors as distinguished from “incompetents” other than
minority is now governed by the RULE ON GUARDIANSHIP OF MINORS (A.M. No.
003-03-05-SC).
Sections 1 and 27 of the RGM make it clear that it shall apply only to
petitions for guardianship over the person, property or both, of a minor. Petitions for
guardianship of incompetents who are not minors shall continue to be governed by
Rules 92-97 and heard and tried by regular Regional Trial Courts.
Rules 92-97 may therefore be deemed modified by the RGM.
• Who may petition for appointment of guardian of incompetent (Sec. 1,
Rule 92)?
Relative, friend, or other person on behalf of incompetent who has no parent
or lawful guardian, for the appointment of a general guardian for the person or estate
or both of such incompetent.
• Who may petition for appointment of guardian of minor (Sec. 2, RGM)?
1. Relative or other person on behalf of the minor
 32
2. Minor himself if 14 years of age or over
for the appointment of a general guardian over the person or property, or
both, of such minor.
The petition may also be filed by the Secretary of Social Welfare and
Development and Secretary of Health in the case of an insane minor person who
needs to be hospitalized.
• Jurisdictional facts (Sec. 2, Rule 93)
1. incompetency of person for whom guardianship is sought
2. domicile
• Notice of application and hearing (Sec. 3) – NO PUBLICATION
REQUIRED
Notice of hearing of the petition shall be served on
1. persons mentioned in the petition residing in the Philippines
2. incompetent himself
* minor if 14 years of age or over (Sec. 8, RGM)
NOTICE IS JURISDICTIONAL
Service of notice upon the minor if 14 years of age or over or upon the
incompetent is jurisdictional. Without such notice, the court acquired no jurisdiction
to appoint a guardian (Nery vs. Lorenzo, 44 SCRA 431 [1972]).
Sec. 7, Rule 93. Parents as guardians – When the property of the child under
parental authority is worth two thousand pesos or less, the father or the mother,
without the necessity of court appointment, shall be his legal guardian. When the
property of the child is worth more than two thousand pesos, the father or the mother
shall be considered guardian of the child’s property, with the duties and obligations
of guardians under these Rules, and shall file the petition required by Section 2
hereof. For good reasons, the court may, however, appoint another suitable person.
Sec. 16, RGM. Bond of parents as guardians of property of minor. - If the market
value of the property or the annual income of the child exceeds P50,000.00, the
parent concerned shall furnish a bond in such amount as the court may determine,
but in no case less than ten per centum of the value of such property or annual
income, to guarantee the performance of the obligations prescribed for general
guardians.
Rule 97
TERMINATION OF GUARDIANSHIP
Sec. 2. When guardian removed or allowed to resign. New appointment.
A court-appointed guardian of the estate of X, an incompetent, cannot be
removed by the mere return of the latter’s son from abroad. A guardian cannot be
legally removed from office except for the causes mentioned in Sec. 2, Rule 97. None
of these causes exists here. (Bengzon v. PNB, 3 SCRA 751 [1961])
Rule 98
TRUSTEES
Sec. 1. When trustee appointed
1. A trustee necessary to carry into effect the provisions of a
a. Will
b. Written instrument
2. shall be appointed by the RTC in which the will is allowed, or
3. RTC of the province in which the property or some portion thereof
affected by the trust is situated
• Exercise of sound judgment by the court in the appointment of a
trustee
Although the will does not name a trustee, the probate court exercises sound
judgment in appointing a trustee to carry into effect the provisions of the will – where
a trust is actually created by the will by the provision that certain of the property shall
be kept together undisposed during a fixed period and for a stated purpose (Lorenzo
v. Posadas, 64 Phil. 353).
 33
• Acquiring the trust by prescription
A trustee may acquire the trust estate by prescription provided there is a
repudiation of the trust, such repudiation being open, clear and unequivocal, known
to the cestui qui trust (Salinas vs. Tuazon, 55 Phil. 729).
ADOPTION
• Rule on Adoption (A.M. No. 02-6-02-SC), August 22, 2002, which
repealed Rules 99-100, now governs adoption.
• There is also the Inter-Country Adoption Act of 1997 (RA 8043) –
procedure allowing aliens, not presently allowed by law to adopt Filipino
children if such children cannot be adopted by qualified Filipino citizens or
aliens, when beneficial to the child best interests, and shall serve and
protected his/her fundamental rights.
• Nature and concept of adoption
Adoption is a juridical act, a proceeding in rem which creates between two
persons a relationship similar to that which results from legitimate paternity and
filiation.
• Purpose of Adoption
Adoption used to be for the benefit of the adoptor. It was intended to afford
persons who have no child of their own the consolation of having one by creating thru
legal fiction the relation of paternity and filiation where none exists by blood
relationship.
Present tendency – more toward the promotion of
- the welfare of the child, and
- enhancement of his opportunities for a useful and happy life.
Every intendment is sustained to promote that objective.
Under the law now in force, having legitimate, legitimated, acknowledged
natural children or children by legal fiction is no longer a ground for disqualification to
adopt.
• Objectives of Rule on Adoption
a. Best interests of child – paramount consideration in all matters relating to
his care, custody and adoption.
b. The state shall provide alternative protection and assistance thru foster
care or adoption for every child who is foundling, neglected, orphaned, or
abandoned.
• Who may adopt
1. Any FILIPINO
- of legal age
- in possession of full civil capacity and legal rights
- of good moral character
- has not been convicted of any crime involving moral turpitude
- emotionally and psychologically capable of caring for children
- at least 16 yrs. older than the adoptee
* may be waived when adopter is biological parent of adoptee or is
spouse of adoptee’s parent
- in a position to support and care for his children in keeping with
means of the family.
2. Any ALIEN possessing same qualifications, subject to certain conditions.
• HUSBAND AND WIFE MUST JOINTLY ADOPT
EXCEPTIONS:
a) if one spouse seeks to adopt legitimate child of the other;
b) if one spouse seeks to adopt his own illegitimate child (provided the other
spouses signified his consent thereto)
c) if the spouses are legally separated from each other.
 34
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.
• Whose consent necessary
1. biological parents of adoptee, if known
*However, consent of biological parents, even if they are known, is not
necessary if they have ABANDONED the child (Lang vs. CA, 298 SCRA 128
[1998]).
** A petition to adopt a thirteen-year-old girl alleging that the girl, who is
the daughter of the petitioner-spouses' son, had been left in their custody
since she was six-months old, should NOT have been dismissed by the RTC
after due publication and hearing, on the ground that it was not accompanied
by the written consent of the girl's mother although the father had given his
written consent. Since the child was left in petitioner's custody for that long a
time, it may be inferred that her mother had abandoned her such that her
consent was no longer necessary. (Rule 99, Sec. 3; See Lopez v. Republic,
91 O.G. 7931 [CA; 1992])
2. adoptee, if 10 years of age or older
3. legitimate or adopted children of adopter or adoptee, if 10 years of age or
older
4. illegitimate children of adopter, if living with him, if 10 years of age or older
5. spouse of adopter or adoptee
• Change of name
In case petition also prays for change of name, title or caption must contain:
1. registered name of child
2. aliases of other names by which child has been known
3. full name by which child is to be known
• PUBLICATION JURISDICTIONAL
Adoption is action in rem – involves the status of persons.
• Decree of Adoption
If supervised trial custody SATISFACTORY and
- court CONVINCED from trial custody report and evidence adduced that
- adoption shall redound to BEST INTERESTS of adoptee
- DECREE OF ADOPTION issued which shall take effect as of date original
petition filed even if petitioners DIE before issuance
• Adoption strictly between adopter and adopted
If adopting parent should die before adopted child, latter cannot represent the
adopter in the inheritance from the parents and ascendants of the adopter
Adopted child is not related to the deceased in that case because filiation
created by fiction of law is exclusive between adopted and adopter.
By adoption, the adopters can make for themselves an heir but they cannot
make one for their relatives.
• RESCISSION OF ADOPTION BY ADOPTEE
Petition VERIFIED
Filed by adoptee
- over 18 years of age
- with assistance of DSWD, if minor
- by guardian or counsel, if over 18 but incapacitated
Grounds committed by ADOPTER:
1. repeated physical and verbal maltreatment by adopter despite having
undergone counseling
 35
2. attempt on life of adoptee
3. sexual assault or violence
4. abandonment or failure to comply with parental obligations
• Adoption, being for best interests of child, not subject to rescission by
ADOPTER
• Time within which to file petition
If MINOR – within 5 yrs. after reaching age of majority
If INCOMPETENT – within 5 yrs. after recovery from incompetency.
• Financial qualification in adoption
Since the primary consideration in adoption is the best interest of the child, it
follows that the financial capacity of prospective parents should also be carefully
evaluated and considered. Certainly, the adopter should be in a position to support
the would-be adopted child or children, in keeping with the means of the
family..(Landingin vs. Republic, G.R. No. 164948, June 27, 2006)
• An illegitimate child, upon adoption by her natural father, may use the
surname of her natural mother as her middle name. (In the Matter of the
Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31,
2005.)
RULE 102
HABEAS CORPUS
• To what habeas corpus extends (Sec. 1)
1. All cases of illegal confinement of detention
2. by which any person is deprived of his liberty, or
3. by which the rightful custody of any person is withheld from the person
entitled thereto
• Purpose of habeas corpus – relieve a person from unlawful restraint.
Specifically:
1. to obtain immediate relief from illegal confinement
2. to liberate those who may be imprisoned without sufficient cause
3. to deliver them from unlawful custody
Essentially a writ of inquiry and is granted to test the right under which a
person is detained (Velasco v. CA, 245 SCRA 677 [YEAR]).
It is a remedy intended to determine whether the person under detention is
held under lawful authority (Sombong v. CA, 21, 1966).
It is a summary remedy. (Caballes vs. CA, G.R. No. 163108, February 23,
2005)
• When constitutional rights disregarded – writ may issue Exceptional
remedy to release a person whose liberty is illegally restrained such as when
the constitutional rights of the accused are disregarded.
Such defect results in the absence or loss of jurisdiction and therefore
invalidates the trial and consequent conviction of the accused. That void judgment
may be challenged by collateral attack which precisely is the function of habeas
corpus.
This writ may issue even if another remedy which is less effective may be
availed of – failure by accused to perfect his appeal before the CA does not preclude
recourse to the writ.
The writ may be granted upon a judgment already final (Chavez v. CA, 24
SCRA 663 [1968]).
• Distinction between writ and citation
Preliminary citation – requiring the respondent to appear and show cause
why the peremptory writ should not be granted
 36
Peremptory writ of habeas corpus – unconditionally commanding the
respondent to have the body of the detained person before the court at a time and
place therein specified.
• Grant of writ
When court is satisfied that prisoner does not desire to appeal, the prisoner
shall be forthwith released (Sec. 15, Rule 102)
• Period to appeal – within 48 hours from notice of judgment or final order
appealed from (A.M.N. 01-1-03-SC, July 19, 2001).
• Writ as a consequence of judicial proceedings
1. where there has been deprivation of constitutional rights resulting in
restraint of person
2. where court had no jurisdiction to impose the sentence
3. excessive penalty has been imposed, thus sentence is void as to
excess
(Andal v. People, 307 SCRA 605 [1999])
• Habeas corpus as a post-conviction remedy
The writ of habeas corpus applies to all cases of illegal confinement or
detention in which individuals are deprived of liberty.
The writ may not be availed of when the person in custody is under a judicial
process or by virtue of a valid judgment. However, as a post-conviction remedy, it
may be allowed when, as a consequence of a judicial proceeding, any of the
following exceptional circumstances is attendant: (1) there has been a deprivation of
a constitutional right resulting in the restraint of a person; (2) the court had no
jurisdiction to impose the sentence; or (3) the imposed penalty has been excessive,
thus voiding the sentence as to such excess. (Go vs. Dimagiba, G.R. No. 151876,
June 21, 2005)
• No right to bail where applicant is serving sentence by reason of final
judgment
Respondent judge contends that under Section 14, Rule 102 of the Rules of
Court, he has the discretion to allow Te to be released on bail. However, the Court
reiterates its pronouncement in its Resolution of February 19, 2001 in G.R. Nos.
145715-18 that Section 14, Rule 102 of the Rules of Court applies only to cases
where the applicant for the writ of habeas corpus is restrained by virtue of a criminal
charge against him and not in an instance, as in the case involved in the present
controversy, where the applicant is serving sentence by reason of a final judgment.
(Vicente vs. Majaducon, A.M. No. RTJ-02-1698 (Formerly OCA IPI No. 00-1024-
RTJ), June 23, 2005)
• Court of Appeals has jurisdiction to issue writs of habeas corpus in
cases involving custody of minors
There is nothing in RA 8369 which revoked the Court of Appeals’ jurisdiction
to issue writs of habeas corpus involving the custody of minors. (In the Matter of
Application for the Issuance of a Writ of Habeas Corpus: Thornton vs. Thornton, G.R.
No. 154598, August 16, 2004) In fact, the Court of Appeals and Supreme Court have
concurrent jurisdiction with family courts in habeas corpus cases where the custody
of minors is involved. (Madriňan vs. Madriňan, G.R. No. 159374, July 12, 2007)
*A Makati-RTC cannot entertain a habeas corpus petition filed by the natural
parents of a child that will interfere with the jurisdiction of a co¬equal and coordinate
court (the Cavite-RTC) and the designation by the latter of the grandparents as
guardians ad litem. The writ should not issue because the minor is lawfully in the
custody of his grandparents by virtue of a court order. (Panlilio v. Salonga, 233 SCRA
476 [1994])
• Marital rights including co-venture and living in conjugal dwelling may
not be enforced by the extraordinary writ of habeas corpus. (Ilusorio vs.
Bildner, et.al., G.R. No. 139808, May 12, 2000)
• Order to produce body not a grant of the remedy of habeas corpus
In a habeas corpus petition, the order to present an individual before the
court is a preliminary step in the hearing of the petition. The respondent must
produce the person and explain the cause of his detention. However, this order is not
a ruling on the propriety of the remedy or on the substantive matters covered by the
remedy. Thus, the Court’s order to the Court of Appeals to conduct a factual hearing
 37
was not an affirmation of the propriety of the remedy of habeas corpus. (In the Matter
of the Petition for Habeas Corpus of Alejano vs. Cabuay, G.R. No. 160792, August
25, 2005)
• Writ of habeas corpus cannot be issued once person is charged with a
criminal offense
Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus
extends to “all case of illegal confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody of any person is withheld from
the person entitled thereto.” The remedy of habeas corpus has one objective: to
inquire into the cause of detention of a person, and if found illegal, the court orders
the release of the detainee. If, however, the detention is proven lawful, then the
habeas corpus proceedings terminate. (In the Matter of the Petition for Habeas
Corpus of Kunting, G.R. No. 167193, April 19, 2006)
• Habeas corpus in custody cases
Habeas corpus may be resorted to in cases where rightful custody is
withheld from a person entitled thereto. Under Article 211 of the Family Code,
respondent Loran and petitioner Marie Antonette have joint parental authority over
their son and consequently joint custody. Further, although the couple is separated
de facto, the issue of custody has yet to be adjudicated by the court. In the absence
of a judicial grant of custody to one parent, both parents are still entitled to the
custody of their child. In the present case, private respondent’s cause of action is the
deprivation of his right to see his child as alleged in his petition. Hence, the remedy of
habeas corpus is available to him.
In a petition for habeas corpus, the child’s welfare is the supreme
consideration. The Child and Youth Welfare Code unequivocally provides that in all
questions regarding the care and custody, among others, of the child, his welfare
shall be the paramount consideration. (Salientes vs. Abanilla, G.R. No. 162734,
August 29, 2006)
• Retroactive effect of favorable law - People vs. Caco, 269 SCRA 271
(1997)
1. Caco sentenced to life imprisonment for violation of Dangerous Drugs Act
(RA 6425)
2. Filed motion for modification of sentence pursuant to RA 7659 and People
v. Simon that where marijuana less than 200 grams penalty is prision correccional
3. Petition granted – provisions of RA 7659 favorable to accused should be
given retroactive effect.
4. Where decision already final, appropriate remedy of accused to secure release
from prison is petition for habeas corpus
• Bernarte vs. CA, 263 SCRA 323 (1996)
1. Once person detained is duly charged in court, he may no longer
question his detention by petition for habeas corpus
2. Remedy: motion to quash the information and/or warrant of arrest
3. Filing of bond for temporary release is waiver of illegality of detention
• Paredes vs. SB, 193 SCRA 464: absence of preliminary investigation not a
ground for habeas corpus. Remedy: motion to quash warrant of arrest and/or
information, or ask for investigation/reinvestigation
Note: Rule 114, Sec. 26 of 2000 Revised Rules of Criminal Procedure: Bail
not a bar to objections on illegal arrest, lack of or irregular preliminary investigation,
provided he raises them BEFORE entering his plea
• Larrañaga vs. CA, 287 SCRA 581 (1998) – Kidnapping & serious illegal
detention
1. Filing of charges and issuance of warrant of arrest cures defect of
invalid detention
2. Absence of preliminary investigation – will not nullify information and
warrant of arrest
• Galvez vs. CA, 237 SCRA 685
1. Habeas corpus and certiorari may be ancillary where necessary to give
effect to supervisory power of higher courts
2. Habeas corpus – reaches body and jurisdictional matters but not the
records
 38
3. Certiorari – reaches record but not the body
4. Not appropriate for asserting right to bail – file petition to be admitted to
bail
Velasco vs. CA, 245 SCRA 667 (1995)
• petition for habeas corpus insofar as the discharge of the detainee is concerned,
Even if arrest illegal, supervening events may bar his release or discharge
from custody, such as filing of complaint and issuance of order denying petition to
bail.
• Latest Jurisprudence
Section 1, Rule 102 of the Rules of Court provides that a petition for the issuance
of a writ of habeas corpus may be availed of in cases of illegal confinement by which
any person is deprived of his liberty, or by which the rightful custody of any person is
withheld from the person entitled thereto. In Feria v. Court of Appeals, the Court held
that the writ may also be issued where, as a consequence of a judicial proceeding,
(a) there has been a deprivation of a constitutional right resulting in the restraint of a
person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive
penalty has been imposed, as such sentence is void as to such excess. (In the
Matter of the Application for the Writ of Habeas Corpus Reclassifying Sentence to
R.A. NO. 8353 in Behalf of Rogelio Ormilla, et al. vs, The Director, Bureau of
Corrections, G.R. No. 170497, January 22, 2007)
Petitioner was detained pursuant to a final judgment of the Quezon City RTC
convicting him for the crimes of carnapping and illegal possession of firearms. He is
therefore not entitled to the writ of habeas corpus.
The rule is that if a person alleged to be restrained of his liberty is in custody of an
officer under process issued by a court or judge or by virtue of a judgment or order of
a court of record the writ of habeas corpus will not be allowed. (Barredo vs. Vinarao,.
G.R. No. 168728, August 2, 2007)
Once a person detained is duly charged in court, he may no longer question his
detention through a petition for issuance of a writ of habeas corpus. His remedy
would be to quash the information and/or the warrant of arrest duly issued. The writ
of habeas corpus should not be allowed after the party sought to be released had
been charged before any court. The term “court” includes quasi-judicial bodies or
governmental agencies authorized to order the person’s confinement, like the
Deportation Board of the Bureau of Immigration.
The provisional or temporary release of Gao Yuan also effectively granted the
since the main prayer in a petition for habeas corpus relates to the release or
discharge of the detainee. The general rule is that the release, whether permanent
or temporary, of a detained person renders the petition for habeas corpus moot and
academic. Such release must be one which is free from involuntary restraints. Gao
Yuan’s release, while still subject to certain conditions, did not unduly restrain her
movements or deprive her of her constitutional freedoms. (Office of the Solicitor
General vs. Judge de Castro, A.M. No. RTJ-06-2018 (Formerly Adm. Matter OCA-IPI
No. 05-2360-RTJ), August 3, 2007)
In general, the purpose of the writ of habeas corpus is to determine whether or
not a particular person is legally held. A prime specification of an application for a writ
of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral,
illegal restraint of liberty. (In the Matter of the Petition of Habeas Corpus of Eufemia
Rodriguez vs. Luisa Villanueva, G.R. No. 169482, January 29, 2008)
Notably, the record shows that Judge Perello granted the writs of habeas corpus
even without the pertinent copies of detention and judgment of conviction. This is
contrary to the provisions of Section 3(d) of Rule 102 of the Rules of Court. The
Rules clearly require that a copy of the commitment or cause of detention must
accompany the application for the writ of habeas corpus. (Office of the Court
Administrator vs. Judge Perello, A.M. No. RTJ-05-1952, December 24, 2008)
Strict compliance with the technical requirements for a habeas corpus petition as
provided in the Rules of Court may be dispensed with where the allegations in the
application are sufficient to make out a case for habeas corpus.
Nonetheless, we agree with the OSG that petitioner is not entitled to the issuance
of the writ. A convict may be released on parole after serving the minimum period of
his sentence. However, the pendency of another criminal case is a ground for the
disqualification of such convict from being released on parole. (Fletcher vs. The
Director of Bureau of Corrections, UDK-14071, July 17, 2009)
 39
The writ of habeas corpus should not be allowed after the party sought to be
released had been charged before any court. The term “court” in this context
includes quasi-judicial bodies of governmental agencies authorized to order the
person’s confinement, like the Deportation Board of the Bureau of Immigration.
Likewise, the cancellation of his bail cannot be assailed via a petition for habeas
corpus. When an alien is detained by the Bureau of Immigration for deportation
pursuant to an order of deportation by the Deportation Board, the Regional Trial
Courts have no power to release such alien on bail even in habeas corpus
proceedings because there is no law authorizing it.(Go, Sr. vs. Ramos, G.R. No.
167569, September 4, 2009)
A writ of habeas corpus extends to all cases of illegal confinement or detention or
by which the rightful custody of person is withheld from the one entitled thereto.
Respondent, as the judicial guardian of Lulu, was duty-bound to care for and protect
her ward. For her to perform her obligation, respondent must have custody of Lulu.
Thus, she was entitled to a writ of habeas corpus after she was unduly deprived of
the custody of her ward. (Hernandez vs. San Juan-Santos, G.R. No. 166470, August
7, 2009)
WRIT OF AMPARO
Background
• promulgated on October 24, 2007, “in light of the prevalence of extralegal
killing and enforced disappearances”
• provides rapid judicial relief as it partakes of a summary proceeding that
requires only substantial evidence to make the appropriate reliefs available to
the petitioner; not an action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that
will require full and exhaustive proceedings
• Both preventive and curative
It is preventive in that it breaks the expectation of impunity in the commission
of these offenses; it is curative in that it facilitates the subsequent punishment of
perpetrators as it will inevitably yield leads to subsequent investigation and action.
• Ultimate goal
- to deter the further commission of extralegal killings and enforced
disappearances
• “Extralegal killings” – killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings.
• “Enforced disappearances” – attended by the following characteristics: an
arrest, detention or abduction of a person by a government official or
organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate
or whereabouts of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside the protection of law.
• Petitioner – aggrieved party, or any qualified person or entity (Sec. 2, A.M.
No. 07-9-12-SC)
• Venue – Supreme Court, Court of Appeals, and Sandiganbayan (Manila) or
RTC of place where threat, act, or omission was committed or any of its
elements occurred (Sec. 3, A.M. No. 07-9-12-SC)
> May be filed on any day and at any time and is exempt from docket and
other lawful fees (Secs. 3 and 4, A.M. No. 07-9-12-SC)
• Extent of Enforceability – anywhere in the Philippines
• How served – personally; but if it cannot be served personally, rules on
substituted service shall apply (Sec. 8, A.M. No. 07-9-12)
• Interim Reliefs (Sec. 14, A.M. No. 07-9-12)
a. Temporary Protection Order
b. Inspection Order
 40
c. Production Order
d. Witness Protection Order
• Effect of filing criminal action (Sec. 21, A.M. 07-9-12)
>When a criminal action has been commenced, no separate petition for
the writ shall be filed. The reliefs under the writ shall be available by motion
in the criminal case.
• Jurisprudence
The threatened demolition of a dwelling by virtue of a final judgment of the court is
not included among the enumeration of rights for which the remedy of a writ of
amparo is made available. Their claim to their dwelling, assuming they still have any
despite the final and executory judgment adverse to them, does not constitute right to
life, liberty and security. There is, therefore, no legal basis for the issuance of the writ
of amparo. (Canlas vs. Napico Homeowners Association I – XIII, Inc.,. G.R. No.
182795, June 5, 2008)
We are far from satisfied with the prima facie existence of the ultimate facts that
would justify the issuance of a writ of amparo. Rather than acts of terrorism that pose
a continuing threat to the persons of the petitioners, the violent incidents alleged
appear to us to be purely property-related and focused on the disputed land. If the
petitioners wish to seek redress and hold the alleged perpetrators criminally
accountable, the remedy may lie more in the realm of ordinary criminal prosecution
rather than on the use of the extraordinary remedy of the writ of amparo. (Tapuz vs.
Judge del Rosario, G.R. No.182484, June 17, 2008)
While the right to life under Article III, Section 1 guarantees essentially the right
to be alive - upon which the enjoyment of all other rights is preconditioned - the right
to security of person is a guarantee of the secure quality of this life.
First, the right to security of person is “freedom from fear.” (Universal Declaration
of Human Rights [UDHR] and International Covenant on Civil and Political Rights
[ICCPR]) The Philippines is a signatory to both the UDHR and the ICCPR.
Second, the right to security of person is a guarantee of bodily and psychological
integrity or security. (Article III, Section 12 of the 1987 Constitution)
Third, the right to security of person is a guarantee of protection of one’s rights by
the government. Protection includes conducting effective investigations, organization
of the government apparatus to extend protection to victims of extralegal killings or
enforced disappearances (or threats thereof) and/or their families, and bringing
offenders to the bar of justice. (The Secretary of National Defense vs. Manalo, G.R.
No. 180906, October 7, 2008)
WRIT OF HABEAS DATA
• Concept
- remedy available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in
the gathering, collecting, or storing of data or information regarding the
person, family, home, and correspondence of the aggrieved party.
• Purpose
- designed to safeguard individual freedom from abuse in the information
age by means of an individual complaint presented in a constitutional
court
- specifically, protects the image, privacy, honor, information, self-
determination, and freedom of information of a person
• Effectivity: February 2, 2008
• Petitioner (Sec. 2, A.M. No. 08-16-SC)
GENERAL RULE: aggrieved party
EXCEPT: in cases of extralegal killings and enforced disappearances:
1) immediate family;
 41

2) in default of no. 1, ascendant, descendant, or collateral relative (d) The location of the files, registers or databases, the
th
within the 4 civil degree of consanguinity or affinity government office, and the person in charge, in possession or in
control of the data or information, if known;
• Venue (Sec. 3, A.M. No. 08-1-16-SC) (e) The reliefs prayed for, which may include the updating,
1. Supreme Court rectification, suppression or destruction of the database or
2. Court of Appeals information or files kept by the respondent. In case of threats, the
3. Sandiganbayan (Manila) relief may include a prayer for an order enjoining the act complained
4. Regional Trial Court of; and
a.) where petitioner resides (f) Such other relevant reliefs as are just and equitable.”
b.) where respondent resides
c.) which has jurisdiction over place where data/ information is gathered
AT THE OPTION OF PETITIONER. We see no concrete allegations of unjustified or unlawful violation of the right to
privacy related to the right to life, liberty or security. The petition likewise has not
• Extent of enforceability – anywhere in the Philippines alleged, much less demonstrated, any need for information under the control of police
authorities other than those it has already set forth as integral annexes. The
• Service – personal; if cannot be served personally on respondent, rules on necessity or justification for the issuance of the writ, based on the insufficiency of
substituted service shall apply (Sec. 9, A.M. No. 08-1-16-SC) previous efforts made to secure information, has not also been shown. In sum, the
prayer for the issuance of a writ of habeas data is nothing more than the “fishing
• Effect of filing criminal action expedition” that this Court - in the course of drafting the Rule on habeas data - had in
mind in defining what the purpose of a writ of habeas data is not. In these lights, the
When a criminal action has been commenced, no separate petition outright denial of the petition for the issuance of the writ of habeas data is fully in
for the writ shall be filed. The relief under the writ shall be available to an order. (Tapuz vs. Judge Rosario, G.R. No.182484, June 17, 2008)
aggrieved party by motion in the criminal case.

• Jurisprudence

Section 6 of the Rule on the Writ of Habeas Data requires the following RULE 103
material allegations of ultimate facts in a petition for the issuance of a writ of CHANGE OF NAME
habeas data:
• Purpose of Rule
“(a) The personal circumstances of the petitioner and the
respondent; Under Art. 376, Civil Code – no person can change his name or surname
(b) The manner the right to privacy is violated or threatened without juridical authority
and how it affects the right to life, liberty or security of the aggrieved
party; Involving substantial changes, objective is the prevention of fraud.
(c) The actions and recourses taken by the petitioner to
secure the data or information; • Nature of proceeding
 42
To establish the status of a person involving his relation with others, that is,
his legal position in, or, with regard to the rest of the community
• Who may file petition
“Person” – all natural persons regardless of status
1. Adopted child (Rep. v. Wong, 209 SCRA 189)
2. Alien - - domiciled in the Philippines, not one temporarily staying
• Jurisdictional requirements
1. Publication of petition for 3 consecutive weeks in newspaper, etc.
2. Both title or caption and body shall recite
a. name or names or alias of applicant
b. cause for which change of name is sought
c. new name asked for
Reason: change of name a matter of public interest
- petitioner might be in rogues gallery or hiding to avoid service of
sentence or escaped from prison
- if alien might have given case for deportation, or subject of deportation
order
Q: The mother filed a petition to change the surname of X, her
twelve-year-old daughter by a first marriage, to make it conform to the
surname of her present husband, X's stepfather. The petition bore the written
consent of the stepfather. Assuming due compliance with all notice re-
quirements, should the petition be granted?
Ans: No. A petition for change of name shall be signed and
verified by the person desiring his name changed (Rule 103, Sec. 2), even
though it may be signed and verified by some other person in his behalf.
Hence, only X herself, when she shall have reached the age of majority, may
file the petition to change her name. The decision to change her name shall
be hers alone to make; it must be her personal decision. When she grows up
to adulthood, she may not want to use her stepfather's surname. (Republic v.
Marcos, 182 SCRA 223 [1990])
• Must show prejudice by official name
1. ridiculous, dishonorable or extremely difficult to write or pronounce
2. change will avoid confusion
having continuously used and been known since childhood by such
name
3. sincere desire to adopt Filipino name to erase signs of foreign alienage,
all in good faith, and no showing that desired name for fraudulent
purpose
• Latest jurisprudence
The State has an interest in the names borne by individuals and entities for
purposes of identification. A change of name is a privilege and not a right, so that
before a person can be authorized to change his name, he must show proper or
reasonable cause, or any compelling reason which may justify such change.
Grounds for change of name which have been held valid:
1) Name is ridiculous, dishonorable, or extremely difficult to write or
pronounce;
2) Change results as a legal consequence, as in legitimation;
3) Change will avoid confusion;
4) When one has continuously used and been known since childhood by a
Filipino name, and was unaware of alien parentage;
5) Sincere desire to adopt Filipino name to erase signs of former alienage,
all in good faith and without prejudicing anybody;
6) Surname causes embarrassment and there is no showing that the
desired change of name was for a fraudulent purpose or that the change
of name would prejudice public interest.
Middle names serve to identify the maternal lineage or filiation of a person as well
as further distinguish him from others who may have the same given name and
surname as he has. In the case at bar, the only reason advanced by petitioner for
dropping his middle name is convenience (In Re Petition for Change of Name and/or
Correction/Cancellation of Entry of Civil Registry of Julian Lin Carulasan Wang, G.R.
No. 159966, March 30, 2005)
 43

Under Art. 176 of the Civil Code, Giovanni is entitled to change his name as he • Who may petition
was never recognized by his father while his mother has always recognized him as 1. interested party
her child. A change of name will erase the impression that he was ever recognized - preferred (Sec. 7)
by his father. It is also his best interest as it will facilitate his mother’s intended (a) spouse present
petition to have him join her in the United States. The Court will not stand in the way (b) competent person
of the reunification of mother and son. (Republic of the Philippines vs. Capote, G.R. 2. relative
No. 157043, February 2, 2007) 3. friend

The court shall grant the petition under Rule 103 only when satisfactory proof has
been presented in open court that the order had been published as directed, the
allegations in the petition are true, and proper and reasonable causes appear for
changing the name of the petitioner. (Re: Final Report on the Judicial Audit
Conducted at the RTC, Br. 67, Paniqui, Tarlac, A.M. No. 06-7-414-RTC, October 19,
2007)
As for respondent’s change of name under Rule 103, this Court has held that a
change of name is not a matter of right but of judicial discretion, to be exercised in
the light of the reasons adduced and the consequences that will follow. The trial
court’s grant of respondent’s change of name from Jennifer to Jeff implies a change
of a feminine name to a masculine name. Considering the consequence that
respondent’s change of name merely recognizes his preferred gender, we find merit
in respondent’s change of name. Such a change will conform with the change of the
entry in his birth certificate from female to male. (Republic vs. Cagandahan, G.R. No.
166676, September 12, 2008)
• Purpose
To represent him provisionally in all that may be necessary
• General rule:
No independent action for declaration of presumption of death – presumption
may arise and be invoked in an action or special proceeding
Exception
Under Art. 41 of Family Code, for purpose of present spouse contracting a
second marriage, must file summary proceeding for declaration of presumptive death
of the absentee, without prejudice to the latter’s reappearance.
This is intended to protect present spouse from criminal prosecution for
bigamy under Art. 349 of RPC.

With judicial declaration that missing spouse is presumptively dead, good

RULE 107 faith of present spouse in contracting marriage is established.
ABSENTEES
• Period of absence of spouse before subsequent marriage
• Requisites - 4 consecutive years – well founded belief that absent spouse already
dead
1. person disappears from domicile - 2 years – danger of death
2. whereabouts unknown
3. no agent to administer property or power conferred on agent has
expired RULE 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
 44
• Who may file petition
1. Any person interested in any
- act
- event
- decree
2. concerning the civil status of persons
3. which has been recorded in the civil registry
• Correction of entry under Rule 108 proceeding in rem – publication
binds the whole world
Substantial corrections or cancellations of entries in civil registry records
affecting the status or legitimacy of a person may be effected through the institution
of a petition under Rule 108 of the Revised Rules of Court, with the proper Regional
Trial Court. Being a proceeding in rem, acquisition of jurisdiction over the person of
petitioner is therefore not required in the present case. It is enough that the trial court
is vested with jurisdiction over the subject matter.
The service of the order at No. 418 Arquiza St., Ermita, Manila and the publication
thereof in a newspaper of general circulation in Manila, sufficiently complied with the
requirement of due process, the essence of which is an opportunity to be heard. The
publication of the order is a notice to all indispensable parties, including Armi and
petitioner minor, which binds the whole world to the judgment that may be rendered
in the petition. (Alba vs. CA, G.R. No. 164041, July 29, 2005)
• Indispensable parties must be notified
Under Sec. 3, Rule 108 not only the civil registrar but also all persons who have
or claim any interest which would be affected by a proceeding concerning the
cancellation or correction of an entry in the civil register must be made parties
thereto.
No party could be more interested in the cancellation of Rosilyn’s birth certificate
than Rosilyn herself. Her filiation, legitimacy, and date of birth are at stake.
The lack of summons on Rosilyn was not cured by the publication of the order of
the trial court setting the case for hearing for three consecutive weeks in a
newspaper of general circulation. Summons must still be served, not for the purpose
of vesting the courts with jurisdiction, but to comply with the requirements of fair play
and due process. This is but proper, to afford the person concerned the opportunity
to protect her interest if she so chooses. (Ceruila vs. Delantar, G.R. No. 140305,
December 9, 2005)
• Administrative correction of clerical or typographical errors
The obvious effect of Republic Act 9048 is merely to make possible the
administrative correction of clerical or typographical errors or change of first name or
nickname in entries in the civil register, leaving to Rule 108 the correction of
substantial changes in the civil registry in appropriate adversarial proceedings.
(Republic v. Benemerito G.R. No. 146963, March 15, 2004).
• Change of name under Rule 108
The enactment in March 2001 of Republic Act No. 9048 has been considered to
lend legislative affirmation to the judicial precedence that substantial corrections to
the civil status of persons recorded in the civil registry may be effected through the
filing of a petition under Rule 108. When all the procedural requirements under Rule
108 are followed, the appropriate adversary proceeding necessary to effect
substantial corrections to the entries of the civil register is satisfied.
With respect to the correction in Carlito’s birth certificate of his name from
“Carlito John” to “Carlito,” the same was properly granted under Rule 108 of the
Rules of Court. As correctly pointed out by the CA, the cancellation or correction of
entries involving changes of name falls under letter “o” of the following provision of
Section 2 of Rule 108: “Entries subject to cancellation or correction. — Upon good
and valid grounds, the following entries in the civil register may be cancelled or
corrected: x x x (o) changes of name.” Hence, while the jurisdictional requirements of
Rule 103 (which governs petitions for change of name) were not complied with,
observance of the provisions of Rule 108 suffices to effect the correction sought for.
More importantly, Carlito’s official transcript of record from the Urious College in
Butuan City, certificate of eligibility from the Civil Service Commission, and voter
 45
registration record satisfactorily show that he has been known by his first name only.
No prejudice is thus likely to arise from the dropping of the second name. (Republic
vs. Kho, G.R. No. 170340, June 28, 2007)
• No intent on the part of the lawmakers to remove the authority of the
trial courts to make judicial corrections of entries in the civil registry
It can be concluded that the local civil registrar has primary, not exclusive,
jurisdiction over such petitions for correction of clerical errors and change of first
name or nickname, with R.A. No. 9048 prescribing the procedure that the petitioner
and local civil registrar should follow. Since R.A. No. 9048 refers specifically to the
administrative summary proceeding before the local civil registrar it would be
inappropriate to apply the same procedure to petitions for the correction of entries in
the civil registry before the courts. ( Re: Final Report on the Judicial Audit Conducted
at the Regional Trial Court, Br. 67, Paniqui, Tarlac, A.M. No. 06-7-414-RTC, October
19, 2007).
• Change of first name is within the primary jurisdiction of the local civil
registrar
RA 9048 now governs the change of first name. It vests the power and authority
to entertain petitions for change of first name to the city or municipal civil registrar or
consul general concerned. Under the law, therefore, jurisdiction over applications for
change of first name is now primarily lodged with the aforementioned administrative
officers. The intent and effect of the law is to exclude the change of first name from
the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of
Entries in the Civil Registry) of the Rules of Court, until and unless an administrative
petition for change of name is first filed and subsequently denied. It likewise lays
down the corresponding venue, form and procedure. In sum, the remedy and the
proceedings regulating change of first name are primarily administrative in nature, not
judicial (Silverio vs Republic, G.R. No. 174689, October 22, 2007)
• Change of sex or gender allowed where person has both male and
female sexual characteristics
The trial court ordered the correction of entries in the birth certificate of
respondent to change her sex or gender, from female to male, on the ground of her
medical condition known as Congenital Adrenal Hyerplasia (CAH), and her name
from “Jennifer” to “Jeff,” under Rules 103 and 108 of the Rules of Court. CAH is one
of many conditions that involve intersex anatomy. The term “intersexuality” applies to
human beings who cannot be classified as either male or female. We respect
respondent’s congenital condition and his mature decision to be a male.
As for respondent’s change of name under Rule 103, this Court has held that a
change of name is not a matter of right but of judicial discretion, to be exercised in
the light of the reasons adduced and the consequences that will follow. The trial
court’s grant of respondent’s change of name from Jennifer to Jeff implies a change
of a feminine name to a masculine name. Considering the consequence that
respondent’s change of name merely recognizes his preferred gender, we find merit
in respondent’s change of name. Such a change will conform with the change of
the entry in his birth certificate from female to male (Republic vs. Jennifer
Cagandahan, G.R. No. 166676, September 12, 2008).
• A person’s first name cannot be changed on the ground of sex
reassignment
Petitioner sought to have his name in his birth certificate changed from “Rommel
Jacinto” to “Mely,” and his sex from “male” to “female.” Petitioner’s basis in praying
for the change of his first name was his sex reassignment. He intended to make his
first name compatible with the sex he thought he transformed himself into through
surgery. However, a change of name does not alter one’s legal capacity or civil
status. RA 9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioner’s first name for his
declared purpose may only create grave complications in the civil registry and the
public interest.
Before a person can legally change his given name, he must present proper or
reasonable cause or any compelling reason justifying such change. In addition, he
must show that he will be prejudiced by the use of his true and official name. In this
case, he failed to show, or even allege, any prejudice that he might suffer as a result
of using his true and official name. (Silverio vs Republic, G.R. No. 174689, October
22, 2007)
• No law allows the change of entry in the birth certificate as to sex on
the ground of sex reassignment.
 46
The acts, events or factual errors contemplated under Article 407 of the Civil
Code include even those that occur after birth. However, no reasonable interpretation
of the provision can justify the conclusion that it covers the correction on the ground
of sex reassignment. To correct simply means “to make or set aright; to remove the
faults or error from” while to change means “to replace something with something
else of the same kind or with something that serves as a substitute.” The birth
certificate of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is necessary.
While petitioner may have succeeded in altering his body and appearance
through the intervention of modern surgery, no law authorizes the change of entry as
to sex in the civil registry for that reason. Thus, there is no legal basis for his petition
for the correction or change of the entries in his birth certificate. (Silverio vs Republic,
G.R. No. 174689, October 22, 2007)
• Registered name of illegitimate child
An illegitimate child whose filiation is not recognized by the father bears only
a given name and his mother’s surname, and does not have a middle name. The
name of the unrecognized illegitimate child therefore identifies him as such. It is only
when the illegitimate child is legitimated by the subsequent marriage of his parents or
acknowledged by the father in a public document or private handwritten instrument
that he bears both his mother’s surname as his middle name and his father’s
surname as his surname, reflecting his status as a legitimated child or an
acknowledged illegitimate child. Accordingly, the registration in the civil registry of the
birth of such individuals requires that the middle name be indicated in the certificate.
The registered name of a legitimate, legitimated and recognized illegitimate child thus
contains a given or proper name, a middle name, and a surname. (In Re: Petition for
Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian
Lin Carulasan Wang, G.R. No. 159966, March 30, 2005).
• Earlier Jurisprudence
Ty Kong Tin (1954): followed by Chua Wee vs. Rep., Wong vs. Rep., Rep. vs.
Medina – Rule 108 should be limited solely to implementation of Art. 412, the
substantive law on the matter of correcting errors in the civil register.
Art. 412 contemplates a summary procedure, involving correction of clerical
errors, or a harmless, innocuous nature, not changes involving civil status, nationality
or citizenship, which are substantial and/or controversial
Rep. vs. Macli-ing ( SCRA )– proceedings, although filed under Rule 108, not
summary because published for 3 consecutive weeks; SolGen notified and filed
opposition, etc.
Rep. vs. Valencia (141 SCRA 462 [1986]) – turning point, paradigm shift:
Rule 108 embodies two kinds of proceedings:
1. procedure summary in nature for correcting clerical or unsubstantial
matters to make it less tedious and expensive
2. procedure adversary in nature to govern proceedings involving
substantial changes
If all procedural requirements have been followed, petition for correction/or
cancellation even if filed under Rule 108 no longer summary.
Even substantial errors may be corrected and true facts established prov.
parties aggrieved by the error avail of the appropriate adversary proceeding.
• Appropriate proceeding:
a. where all relevant facts have been fully weighed and considered
b. where opposing counsel have been given opportunity to demolish the
opposing party’s case
c. where evidence has been thoroughly weighed and considered
• Procedure becomes ADVERSARY proceedings when opposition to petition
is filed by LCR or any person having or claiming interest in entries sought to
be cancelled and/ or corrected and opposition is actively prosecuted.
• Substantial corrections allowed: citizenship from Chinese to Filipino; status
from legitimate to illegitimate’ status of mother from married to single
• Valencia ruling (en banc) reiterated in Chia Ben Lim vs. Zosa (en banc),
Rep. vs. Bautista and Zapanta vs. LCR of Davao
 47
• Attempts to revert to Ty Kong Tin – Labayo Rowe vs. Rep., Leonor vs. CA
and Rep. vs. Labrador
However, all doubts resolved in Lee vs. CA (367 SCRA 110 [2001]):
1. Substantial corrections – Rule 108
2. Clerical or typographical errors (including change of first name) – RA
9048 (administrative correction)
Q: A petition under Rule 108 for cancellation and/or correction in the
entry of birth of minor Y in the Civil Registry of the City of Cebu. The changes sought
are the nationality or citizenship of the minor from "Chinese" to "Filipino" and his
status from "legitimate" to "illegitimate" and also the status of the mother from
"married" to "single." Can the petition be entertained?
Ans.: Yes, provided that the proceedings, although filed under Rule 108, are
not summary. The appropriate notices must be made, and served specially on the
Solicitor General, and the local civil registrar, and the case set for evidentiary hearing
with the Republic being afforded the opportunity to cross-examine the petitioner.
(Republic v. Valencia, 141 SCRA 462 [1986])
• Recent Jurisprudence
“Appropriate adversary proceeding” is “one having opposing parties; contested,
as distinguished from an ex parte application, one of which the party seeking relief
has given legal warning to the other party, and afforded the latter an opportunity to
contest it.”
When all the procedural requirements under Rule 108 are thus followed, the
appropriate adversary proceeding necessary to effect substantial corrections to the
entries of the civil register is satisfied.
No substantial change or correction in an entry in a civil register can be made
without a judicial order, and, under the law, a change in citizenship status is a
substantial change. (Republic vs. Kho, G.R. No. 170340, June 29, 2007)
Republic Act No. 9048 provides in Section 2 (3) that a summary administrative
proceeding to correct clerical or typographical errors in a birth certificate cannot apply
to a change in nationality. Substantial corrections to the nationality or citizenship of
persons recorded in the civil registry should, therefore, be effected through a petition
filed in court under Rule 108 of the Rules of Court. (Kilosbayan Foundation vs.
Ermita, G.R. No. 177721, July 3, 2007)
The local civil registrar has primary, not exclusive, jurisdiction over such petitions
for correction of clerical errors and change of first name or nickname, with R.A. No.
9048 prescribing the procedure that the petitioner and local civil registrar should
follow. (Re: Final Report on the Judicial Audit Conducted at the RTC, BR. 67,
Paniqui, Tarlac, A.M. No. 06-7-414-RTC, October 19, 2007)
A change of name does not alter one’s legal capacity or civil status. RA 9048
does not sanction a change of first name on the ground of sex reassignment. Rather
than avoiding confusion, changing petitioner’s first name for his declared purpose
may only create grave complications in the civil registry and the public interest.
In our system of government, it is for the legislature, should it choose to do so, to
determine what guidelines should govern the recognition of the effects of sex
reassignment. The need for legislative guidelines becomes particularly important in
this case where the claims asserted are statute-based. (Silverio vs. Republic, G.R.
No. 174689, October 22, 2007)
Where the person is biologically or naturally intersex the determining factor in his
gender classification would be what the individual, like respondent, having reached
the age of majority, with good reason thinks of his/her sex. Respondent here thinks of
himself as a male and considering that his body produces high levels of male
hormones (androgen) there is preponderant biological support for considering him as
being male. Sexual development in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that the gender of such persons,
like respondent, is fixed. (Republic vs. Cagandahan, G.R. No. 166676, September
12, 2008)
Rule 109
APPEALS IN SPECIAL PROCEEDING
 48

appealed within the thirty-day reglementary period. Thus, an heir who agreed to
Sec. 1. Any INTERESTED PERSON may appeal from an order or judgment partition the estate but learns later on that he is entitled to a bigger portion can no
rendered by RTC, where such order or judgment longer move for correction of the project of partition two months after the order.
(Imperial v. Munoz,58 SCRA 678 [1974])
1. Allows or disallows a WILL
2. Determines who are the lawful heirs of a deceased or the DISTRIBUTIVE
SHARE of the estate to which he is entitled VENUE OF SPECIAL PROCEEDINGS
3. Allows or disallows, in whole and any part, any CLAIM against the estate, or
any CLAIM presented in behalf of the estate IN OFFSET to any claim against 1. Settlement of estate (Rule 73):
it RTC (or MTC) of province where deceased last resided/property situated.
4. Settles the ACCOUNT of an executor, administrator, trustee or guardian
5. Constitutes, in proceedings relating to the SETTLEMENT of the estate of the 2. Escheat (Rule 91):
deceased, or the ADMINISTRATION of a trustee or guardian, a FINAL RTC of province where deceased last resided/property situated.
DETERMINATION in the lower court of the rights of the party appealing.
Exception: no appeal from appointment of special administrator. 3. Guardianship:
6. Is the FINAL ORDER or JUDGMENT rendered in the case, and affects the (Rule on Guardianship of Minors [A.M. No. 03-02-05-SC])
SUBSTANTIAL RIGHTS of the person appealing. Unless it be an order Family Court of province or city where minor resides/property situated.
granting or denying a motion for new trial or reconsideration – Sec. 1 (a),
Rule 41: no appeal may be taken from an order denying a motion for new Rule 92
trial or reconsideration. RTC of province or city where incompetent resides/property situated.

• In certain kinds of special proceedings, such as settlement of estate, 4.
appeal may be taken at various stages of the proceedings.
The rationale behind allowing more than one appeal in the same case is to
enable the rest of the case to proceed in the event that a separate and distinct issue 5.
is resolved by the court and held to be final. In this multi-appeal mode, the probate
court loses jurisdiction only over the subject matter of the appeal but retains
jurisdiction over the special proceeding from which the appeal was taken for
purposes of further remedies the parties may avail of.
Where multi-appeals are allowed, we see no reason why a separate petition for
certiorari cannot be allowed on an interlocutory aspect of the case that is separate
and distinct as an issue from the aspect of the case that has been adjudged with
finality by the lower court. (Briones vs. Henson-Cruz, G.R. No. 159130, August 22,
2008)
An order of a probate court in estate proceedings approving a project of
partition is final and appealable. (Rule 109, Sec. 1[b]) Being final, the order should be
Adoption (Rule on Adoption [A.M. No. 02-6-02-SC]):
Family Court of province or city where prospective adoptive parents reside.
Rescission – where adoptee resides.
Habeas Corpus (Rule 102):
No rule on venue. SC, CA and RTC have concurrent jurisdiction. However,
the writ of habeas corpus issued by the RTC shall be enforceable only within
its judicial region (Sec. 21, BP 129).
Habeas Corpus for custody of minors:
Family courts have exclusive jurisdiction (Family Courts Act of 1997 [RA
8309].
However, under the Rule on Custody of Minors and Writ of Habeas Corpus in
relation to Custody of Minors (A.M. No. 03-04-04-SC), the petition may be
filed with SC, CA or any of its members, and the writ shall be enforceable
anywhere in the Philippines.
 49

6. Change of name (Rule 103):

RTC of province of residence of petitioner.

7. Absentees (Rule 107):

RTC of place where absentee resided before his disappearance.

8. Cancellation or correction of entries (Rule 108):

RTC of place where civil registry is located.

Correction of clerical or typographical errors (RA 9048):

Local Civil Registrar of place where record is located.

Exc. – if impractical in terms of transportation expenses, time and effort as

where petitioner has transferred to another place – Local Civil Registrar of
petitioner’s residence.